Legal Guide

Welcome to the Digital Media Law Project's Legal Guide!

This guide addresses the practical issues that you may encounter as you gather information, create new and exciting content, and publish your work online. It is intended for use by citizen media creators with or without formal legal training, as well as others with an interest in these issues.

The guide is setup like a book. You will find a table of contents on the right.  Just click on any of the page/section titles to navigate around the guide. At the bottom of every page you will find a list of "child pages" (if they exist) that link to your current page as well as links to the previous and next pages in the guide.

Please keep in mind that this guide is a work in progress: not all sections are available for public viewing yet, and those sections that we have published are still undergoing revisions. If you have any comments or suggestions for how we can improve the guide, please let us know via our contact form.

Disclaimer: Information in this guide is based on general principles of law and is intended for information purposes only; DMLP makes no claim as to the comprehensiveness or accuracy of the information. Because the law can change quickly, portions of the guide may be out of date. In addition, the information may be accurate in one jurisdiction, but not accurate in another. You should use this guide as a starting point for further research. It is not offered for the purpose of providing individualized legal advice.

The DMLP is not your lawyer. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society. The DMLP is not a substitute for individualized legal advice.

Just click on one of the links below to begin browsing the guide:

Forming a Business and Getting Online

Whether you're just getting started or you're a seasoned A-list blogger, there are many legal and practical issues to consider in deciding how to carry on your online publishing activities. We had to start somewhere, so we started at the beginning -- forming a business entity and choosing an online platform. We move on from there to address some other critical issues and questions relating to the mechanics of online publishing.

Here is a list of the topics addressed in this section:

  • Creating a Business: In this section, we address the business structures you can use to carry out your online publishing activities. We also provide general and state-specific information on the steps needed to create a sole proprietorship, a partnership, an LLC, a corporation, and a nonprofit organization.
  • Getting Your Words and Other Content Out to the World: This section looks at the different platforms that you can use in order to get your content out to an audience. It addresses some of the legal issues involved in choosing a platform and performs a comparative analysis of the terms of use for major blog- and website-hosting services and social networking sites.
  • Deciding Whether and How to Be Anonymous: In this section we look at some of the practical questions that might affect your decision to publish anonymously, including the technical measures you can use to maintain your anonymity online.  If you decide to publish anonymously, this section will help you understand how others may be able to use the law to unmask you.  This section also provides summaries of key anonymity cases in various states.
  • Deciding Whether and How to License Your Content:This section provides information about licensing your work, whether it be audio, video, or merely text.  It gives some background on what rights you can transfer and discusses cost-effective options for letting others use your work, including granting a Creative Commons license.

Creating a Business

This section discusses the issues you should consider when forming a business or choosing a business structure to support your online publishing activities. While we suggest that you review these sections in the order they are listed below, if you know exactly what you're interested in, feel free to jump that section.

  • Choosing a Business Form: These pages discuss the advantages and disadvantages of operating your online publishing activities as an informal group, sole proprietor, partnership, LLC, L3C, cooperative, corporation, and nonprofit organization.
  • How to Start a Business: These pages discuss the concrete steps you need to follow to become a sole proprietor or form a partnership, LLC, L3C, corporation, or nonprofit organization in compliance with applicable laws. State-specific information is provided for the fifteen most populous states and the District of Columbia.
  • Other Business Formation and Governance Issues: These pages elaborate on a variety of issues relevant to choosing a business structure and starting a business. They are not meant to stand alone, but rather are pages referenced repeatedly throughout the above two subsections.

Choosing a Business Form

Whether you're already publishing material on your website or justgetting started, the question of what business structure to operateunder is an important one. Depending on whether you work alone or inconjunction with other content creators, you may face hard questions about ownership of assets, management structure, payment of taxes, splitting up of profits (if any), transfer of ownership, and dissolution of your working relationship. Additionally, as we address in detail in other parts of this guide, publishing material online exposes you to the risk of liability for defamation, invasion of privacy, copyright infringement, and other legal claims. What kind ofbusiness structure you choose to adopt can have a significant impact on these and other issues.

Before proceeding, a word or two of caution are in order.There is no magic business structure that will make all legal risks and problems go away. Each person or group of people must make the choice based on their goals and personal preferences. What's more, there is agreat deal of uncertainty about how old-school business law applies tothe online publishing context, so the guidance found here should be taken with a grain of salt.

So what are your options?

  • Sole Proprietor: You can carry on your online publishing activities, alone or in conjunction with employees, as a "sole proprietor." This form is only appropriate if you contemplate being the only owner of the business. There are some adverse liability consequences of this choice (which we'll discuss), but this form gives you direct control over management of your business and its assets, generally involves less up-front, out-of-pocket cost and hassle than the limited liability entities below, and is generally easier from a tax filing perspective because no separate income tax return is required.
  • Informal Group: You can carry on your online publishing activities in conjunction with others without a formal agreement or entity structure governing the terms of your relationship. In this case, your legal status is uncertain, and a court might view you and your collaborators as partners, as employers and employees, or as independent contractors. This may feel like the natural form for collaborators to adopt, and it is low on hassle and up-front, out-of-pocket costs, but it has potentially serious negative consequences in terms of liability and tax implications and can lead to major complications in managing and/or dissolving the enterprise. Under this section, we will discuss the usefulness of so-called "co-publishing" or "co-blogging" agreements as a mechanism for bringing some clarity to your group endeavor.
  • Partnership: You can carry on your online publishing activities in conjunction with others under the auspices of a formal partnership agreement. This choice generally only makes sense if you are carrying on your business for profit. There are some adverse liability consequences of this choice (which we'll discuss), but this form lets you order your group affairs contractually and generally involves less up-front, out-of-pocket cost and hassle than the limited liability entities below. In addition, this form can be advantageous for tax reasons because it allows for pass-through tax treatment (that is, there is generally no entity-level taxation).
  • Limited Liability Company: You can carry on your online publishing activities, alone or in conjunction with others, as a limited liability company. Limited liability companies (LLCs) offer limited liability for the debts and obligations of the company, with somewhat fewer operating formalities than corporations. LLCs are also advantageous because they combine the potential tax benefits of a partnership with the limited liability of a corporation. That said, they generally involve more up-front, out-of-pocket cost and hassle than getting started as and running a sole proprietorship, informal group, or partnership.
  • Low-Profit Limited Liability Company: In some states, you can carry on your online publishing activities as a low-profit limited liability company (L3C). Like the LLC, the L3C offers limited liability for the debts and obligations of the company, with somewhat fewer operating formalities than corporations. L3Cs are designed to take advantage of Program Related Investments (PRI) by private foundations.
  • Cooperative Corporation: If you are interested in creating a community-focused news business, particularly in an area underserved by other journalism outlets, you might consider forming a "cooperative corporation." Many states allow the formation of cooperatives, which are designed to place the ownership and/or control of a business in the hands of the employees or patrons of the business. Cooperatives follow special rules that ensure that all community owners of the cooperative have an equal say in how the business is run. Like standard corporations, this form of business has the benefit of limited liability, and can involve costly and burdensome filing and record-keeping requirements and observation of "corporate formalities." However, a cooperative can avoid some of the "double taxation" issues that affect normal corporations by issuing special "patronage dividends" - i.e., distribution of the profits of a cooperative in the form of a refund to patrons who have purchased goods or services from the cooperative. Some states also allow the formation of non-profit cooperatives, which combine the cooperative concept of equal voting rights with the features of a non-profit corporation (including potentially tax exempt status).
  • Corporation: You can carry on your online publishing activities, alone or in conjunction with others, as a corporation. Most big, publicly traded companies that are "household names" are corporations. This form of business has the benefit of limited liability, but forming and operating a corporation involves costly and burdensome filing and record-keeping requirements and observation of "corporate formalities." Forming a corporation can also have potentially adverse tax consequences because the corporation is taxed on its income at the entity level and the shareholders are also taxed on any dividends that are distributed (see the page on "double taxation" for more information) in the case of a corporation classified under subchapter C of the Internal Revenue Code (a "C Corporation"). 
  • Nonprofit Organization: You can carry on your online publishing activities in conjunction with others as a nonprofit corporation. Those who operate a nonprofit corporation enjoy limited liability for the debts and obligations of the organization, and the organization is not subject to income tax on the federal and (usually) the state level. There are important restrictions involved in operating a nonprofit, however, including limits on the purposes of the organization's activities, a ban on personal benefit from those activities, and restrictions on political and lobbying activities, and the process of filing for tax-exempt status can be time consuming in contrast to the obligations imposed on other business forms discussed above. Also, keep in mind that a nonprofit has no owner(s) in the ordinary sense, and therefore creating one involves relinquishing control. In addition, nonprofits have strict dissolution requirements, they cannot pay dividends, and employees can only receive reasonable salaries. Nevertheless, this may be a good option for members of a collaborative venture that does not aim at making a profit, who want increased legal certainty about their status, and to enjoy limited liability and tax benefits.
For a chart synthesizing the major points identified above, please see our Business Form Comparison Chart.

Keep in mind that operating as a business (as opposed to as anindividual or as part of an informal group) may provide certain legal and non-legal benefits. For example, operating as a business can give your enterprise an air of legitimacy, which may influence the reception of your work or make it easier for you to raise capital or obtain grants (some granting organizations only give money to qualified 501(c)(3) nonprofit organizations). It may also help you get press credentials.

Importantly, you may have a better argument for inclusion under some state shield laws if you are affiliated with a business, and you may have a better chance of invoking the reporter's privilege to avoid having to testify in a legal proceeding regarding your sources and/or information gathered in the course of your news gathering activities. You can refer to the State Shield Laws page for more information, and we will be dealing with the reporter's privilege in forthcoming sections of this guide.

 

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Sole Proprietor

A sole proprietorship is a business owned by a single individual. Being a sole proprietor doesn't mean that you necessarily operate the business alone. This can be the case, but you also may hire employees and/or independent contractors to do work for you and still operate as a sole proprietorship. The key issue is ownership -- you can have hundreds of employees or freelance workers, but if you are the only owner of the business (and you haven't incorporated or created another formal business entity), then your business is a sole proprietorship. A sole proprietorship springs into existence whenever an individual commences doing business, and the business has no separate existence from the owner.

In determining whether you want to operate as a sole proprietorship, you may want to consider the following factors:

  • Liability: A sole proprietor is personally liable for all the debts and obligations of the business, including liability for your own unlawful acts and those of your employees. For instance, if your employee writes a defamatory article or posts copyright infringing material on your website or blog, then you can be held personally liable, and a winning plaintiff can can collect the judgment out of your personal assets, like your bank account or house.

  • Formation: It is odd to speak about "forming" something that springs into existence whenever someone commences doing business. That said, there are some basic steps that sole proprietors should follow to make sure they are operating in compliance with federal, state, and local laws. These steps are relatively easy and cheap to perform. Please see the Forming a Sole Proprietorship section for details. Because the process is simple, you probably would not need the assistance of a lawyer.

  • Management Structure: There are no special legal requirements regarding the management structure of a sole proprietorship. As the owner of a sole proprietorship, you exercise complete control over the management of the business. The extensive control retained by the owner is one of the significant advantages of choosing to operate as a sole proprietorship.

  • Operation: A sole proprietorship is relatively easy and cheap to operate. Owners do not have to observe the extra "formalities" of a corporation and there are generally fewer record-keeping and reporting requirements than for corporations or LLCs. Sole proprietors must still meet those tax and other regulatory obligations imposed on all small businesses. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

  • Ownership of Assets/Distribution of Profits: The owner of the sole proprietorship owns all assets of the business and is entitled to receive all profits from its operation. Among the most important assets of any business that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.

  • Tax Treatment: A sole proprietorship itself does not pay a separate income tax at the entity level. Rather, the owner reports the business's profits or losses on his or her individual income tax return and pays tax at his or her marginal income tax rate. In this way, sole proprietors avoid the "double taxation" associated with certain corporations. Owners may also be able to deduct some business losses against personal income from other sources, like a salary from a "day job," interest on savings, dividends from other investments, and gains from the sale of non-business property. If an owner files jointly with his or her spouse, these business losses may also offset the spouse's income. For more information on the tax obligations of sole proprietorships, see the IRS's page, Sole Proprietorships (includes links to forms and other resources).

If you operate a blog or website individually, but do not generate revenue or intend to make a profit, then you are not operating a sole proprietorship, and the law will treat you like any other individual. You will be personally liable for your own unlawful actions and any debts or other obligations you incur in the course of your activities. If you start collaborating with others, the issues raised in the Informal Group section will become relevant.

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Informal Group

Perhaps the most common way of carrying on online publishingactivities is as part of an informal group of individuals actingcollaboratively. In this situation, there is no written partnership agreement or LLC operating agreement, and the individuals involved have taken no steps to create a formal business entity such as an LLC, a corporation, or a nonprofit organization.

A common example of this type of relationship is a so-called"co-blogging" arrangement. This could be a situation where two or morebloggers publish their content on a single jointly-run blog or websiteon a regular basis, sharing administrative responsibilities to agreater or lesser degree. Alternatively, it could be a situation wherea blogger or group of bloggers invite a "guest blogger" to publishcontent for a limited period of time (generally with no administrativeresponsibilities). Co-blogging is not the only example of this kind ofcollaborative relationship – any citizen media or other site runinformally (without an agreement or formal entity structure) by two ormore individuals fits the bill. For the sake of convenience, in thissection we will refer to individuals working in such a relationship as"co-publishers" because the activity all these different groups shareis publishing their content online.

While this form of publishing content has the advantage ofinformality and flexibility (no formation or operating costs, noburdensome bureaucratic requirements), it creates a great deal ofuncertainty about the legal and tax status of the co-publishers' relationship.This uncertainty can have negative consequences, including exposingco-publishers to personal liabilityfor the unlawful acts of their colleagues, and creating complicationsin the management and/or dissolution of the enterprise, as well as certain tax consequences. The sectionsthat follow discuss the advantages and disadvantages of operating as aninformal group and outline two methods for dealing with the legaluncertainty that goes along with it.

Advantages of Operating As An Informal Group

  • Informality and Flexibility: The advantages of operating as an informal group stem from its informality and flexibility. No burdensome paperwork or costly filing fees are required to form the group, and operating it requires no special burden or expense. Informality also allows for great flexibility in managing the group's activities and structuring the relationship between co-publishers. As a practical matter, working as an informal group may seem the "natural" choice for co-publishers who don't have a solid idea of what they want out of a co-publishing relationship or how long it will last. If an arrangement is "just between friends," it might strike the wrong chord to propose increased formality. More seriously, the bother and cost of forming a more formal entity seems wasteful and unnecessary if co-publishers don't have long-term plans to continue their publishing activity. While these advantages are real, they come at the cost of uncertainty and potential exposure to personal liability, as explained below.

Disadvantages of Operating As An Informal Group

There are several potential disadvantages to operating as an informal group:

  • Liability: One drawback for those engaging in online publishing activity as an informal group is personal liability for the acts of their co-publishers. The major liability risk for most citizen media sites or blogs is getting sued for defamation. Other significant risks includes legal claims for invasion of privacy, copyright and trademark infringement, and violations of trade secret laws, all of which could arise out of the act of publishing content online. Co-publishers could be held personally liable for the unlawful actions of their colleagues if they are deemed to be either:

    • Part of an informal partnership: A partnership is an "association of two or more persons to carry on as co-owners of a business for profit." Uniform Partnership Act § 202. If the individuals involved intend to carry on as co-owners of a business for profit, then a partnership is formed, and it does not matter if they have no specific, subjective intention to be “partners” or to create a “partnership." If your group does not generate revenue or intend to make and distribute profits, then you do not need to worry much about this issue.
      • If you generate advertising revenue from your website or blog, for instance, and your group distributes that revenue to individual participants after settling expenses (rather than, say, investing all of it back into running the website), then there is a strong likelihood that a court would characterize your group as an informal partnership and hold each co-publisher personally liable for the others' actions in furtherance of the partnership. In a group publishing context, articles and/or posts published by partners on the group website or blog probably would be considered "in furtherance of the partnership," although the law is not clear on this point.

      • If, on the other hand, your group website or blog generates no revenue, or the group uses all revenue to keep the operation running, then there is less likelihood that a court would characterize your group as a partnership. Another aspect a court might look at is whether your group is “carrying on” in any permanent way. Thus, a court might find that the usual “guest blogger” is not a partner with other bloggers on the site, even if revenues are generated, because they probably lack the intent to “carry on” as a business, which implies some degree of permanence (although certainly not perpetual existence).

    • The employer in an employer-employee relationship:Employers are liable for the unlawful acts of their employees committed in the scope of the employment.

      • As detailed on the Employee Versus Independent Contractor page, whether or not an employer-employee relationship exists (as opposed to an employer-independent contractor relationship or no employment relationship whatsoever) depends on the control the hiring party has over the manner and means of the hired party's performance of work, and courts apply a fact-sensitive, multi-factor test to make this determination. Compensation is not required.

      • As a general matter, the more independence co-publishers have in carrying out their publishing activities, the less of a problem this risk of liability poses. The reverse is also true: if you assign individuals in the group specific tasks and they carry out those tasks under your supervision, there is a significant chance that they could be your employees in the eyes of the law.
  • Lack of Framework for Management: While informality and flexibility sometimes are advantageous, these same traits may make it difficult to manage an enterprise on a day-to-day level. Beyond creating confusion and inefficiency, lack of a framework can lead to disagreement. Without any formal agreement to fall back on for decision-making procedures or delegation of day-to-day responsibilities, serious conflicts could arise between co-publishers on a whole array of management issues. Don't be fooled -- although we use a lot of space to discuss liability risks above, in real life you are far more likely to be plagued by these management problems than you are to be sued for what you write online.
    • Mistakes Regarding Tax Obligations: Operating informally, you might unknowingly disregard tax obligations. Potential tax pitfalls include failure to pay self-employment taxes, failure to obtain an Employer Identification Number, and/or failure to withhold employment taxes, in addition to disproportionate distributions or allocations of income if the relationship is classified as a tax partnership. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section of this Guide.

    Two Methods for Increasing Legal Certainty

    There are two ways that co-publishers can reduce the uncertaintyinherent in their informal group arrangement: (1) entering into a"co-publishing" agreement; or (2) forming a limited liability businessentity like an LLC, a corporation, or a nonprofit organization. Neither or these routes is a complete solution, but, in the words of Eric Goldman, both are "preferable to co-bloggers [or other co-publishers] doing nothing proactive to override the default rules."

    Co-Publishing Agreements

    Co-publishers can enter into a formal "co-publishing" or"co-blogging" agreement in order to clarify the status of theirrelationship and set out the parameters under which the group willoperate. If co-publishers are carrying on a business for profit, thenthis agreement will be legally indistinguishable from a partnership agreement, and they will have adopted the partnershipform of business. If co-publishers are not carrying on a business forprofit, then the group won't legally be a partnership, but theagreement can set out group decision-making procedures, delegateduties, and describe what assets (including copyrights) will belong toand be licensed to whom.

    The benefits of adopting this approach is two-fold. First, itis cheap and involves few requirements in terms of paperwork.Co-publishers can draft the agreement themselves, although there is noassurance that the entire agreement will be legally enforceable withoutthe assistance of an attorney. Besides signing the agreement, there areno other steps or legal requirements to make it binding. Second, thisapproach allows for a great deal of customization to take into accountthe specific circumstances of the group and its publishing activities.In other words, much of the flexibility of the informal group structurecan be maintained, but now with some framework to fall back on.Effective customization, however, sometimes increases complexity in thedrafting process, and may necessitate the assistance of an attorney tomake the agreement fully enforceable.

    Despite these advantages, there are limitations on what aco-publishing agreement can do. For instance, in an effort to avoidpersonal liability, co-publishers might put a clause in their agreementspecifying that the group is "not a partnership," or saying thatcertain individuals are not the employees of others. A court could givesome weight to this type of language, but would disregard it if thefacts showed otherwise. Additionally, assuming that the group isoperating for profit, a co-publishing agreement would not eliminatepersonal liability for the acts of co-publishers. As noted, with suchan agreement, the group would be treated like a partnership,which still exposes partners to personal liability for the unlawfulacts of partners taken in furtherance of the partnership. The agreementcould allocate liability in a particular way among the co-publishersthemselves (for instance, requiring one co-publisher to indemnify orpay back the others for liability arising out the group's publishingactivities), but this would not be binding against injured thirdparties. To obtain limited liability for the actions of other co-publishers, the group would have to form an LLC, Corporation, or nonprofit organization.

    Forming an LLC, Corporation, or NonProfit Organization

    Co-publishers can create a formal business entity like an LLC, corporation, or nonprofit organization. The common benefit here is limited liability,and each will bring the desired level of certainty to the grouprelationship (though not necessarily any more than a co-publishingagreement).

    There are benefits and disadvantages to each of these businessforms -- for specifics, please see their respective pages (linkedabove). The common disadvantage vis-a-vis a co-publishing agreement isthe relative expense and burden that they all require to form andoperate. Additionally, adopting these forms may remove some of theflexibility in management and other affairs that the group enjoyed inits informal days. This is not necessarily the case, however -- ownersof an LLC usually enter into an operating agreement,which allows for the same kind of customization found in aco-publishing agreement. Keep in mind that, even with a limitedliability business entity, co-publishers would remain personally liablefor their own personal misconduct, like writing a defamatory article orpost.

    Choosing Between the Two Options

    For a group that is not operating for profit, a co-publishingagreement may be the best course to take, because liability exposure islimited (the agreement does not affect this), and the agreementprovides a relatively cheap and easy way to bring increased certaintyto the relationship. Moreover, if the group generates no revenue, itmay be hard to justify the costs of forming and operating a more formalbusiness entity.

    For a group that is operating for profit, whether to go with aco-publishing agreement or a business entity with limited liabilityprotection depends to a great extent on the group's potential liabilityexposure. Some factors to consider in determining this exposure includethe number of individuals publishing content (the more people, the morerisk of liability) and the character of the published work (is it thekind of material that might be defamatory? other problems?). Theco-publishers would also need to evaluate their comfort threshold forrisk and any economic constraints that might stand in the way ofcreating a formal business entity.

     

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    Partnership

    A partnership is an "association of two or more persons to carry on as co-owners of a business for profit." Uniform Partnership Act § 202. These co-owners can operate the business by themselves, or hire employees and/or independent contractors to carry out tasks for them. As a practical matter, a partnership is usually created by the partners entering into a formal partnership agreement, which sets down ground rules for what capital contributions are required from the partners, how the business will be managed, and how profits and losses will be allocated, among other things.

    In determining whether you want to operate as a partnership, you may want to consider the following factors:

    • Liability: Each partner in a partnership is personally liable for all the debts and obligations of the business, including liability for your own unlawful acts and those of your fellow partners and employees. For instance, if your partner writes a defamatory article or posts copyright infringing material on your jointly-run website or blog, then you can be held personally liable, and the winning plaintiff can can collect the judgment out of your personal assets, like your bank account or house. The same goes for a defamatory article or infringing post published by an employee of the partnership in the scope of the employment relationship.

    • Formation and Dissolution: A partnership is relatively easy and cheap to form. Please see the Forming a Partnership section for details on the required/advisable steps. You and your partners should draft and execute a partnership agreement. Drafting one that is highly customized to your business may involve some complexity. It will be up to you and your partners whether the assistance of a lawyer is required. Unlike a corporation, a partnership does not have a perpetual existence. Dissolution is provided for in the partnership agreement or happens with the death, retirement, withdrawal, expulsion, incapacity, or bankruptcy of a partner.

    • Management Structure: As a general matter, a partnership allows for an informal, de-centralized management style, with partners exerting direct control over the day-to-day affairs of the business. Partners are free to customize the management structure in the partnership agreement.

    • Operation: A partnership is relatively easy and cheap to operate. Partners do not have to observe the extra "formalities" of a corporation and there are generally fewer record-keeping and reporting requirements than for corporations or LLCs. Partnerships must still meet those tax and other regulatory obligations imposed on all small businesses. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

    • Ownership of Assets/Distribution of Profits: Partners generally do not own the assets of the business personally -- depending on state law, either the partnership itself owns all business assets or the partners are co-owners of partnership property. In either case, a partner that withdraws from the business is entitled to a share of profits and partnership assets after liabilities are taken into account, and the same is true for all partners upon termination of the partnership. Unless the partnership agreement provides otherwise, profits and losses are split up among the partners on an equal, per-capita basis. For example, if there are four partners, the profits and losses will be split up one-quarter to each partner, absent an agreement specifying some other distribution.

      • Among the most important assets of any business that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.

    • Tax Treatment: A partnership itself does not pay income tax. The profits or losses of the business "pass through" to the partners, and they pay income tax on their proportional share of the income at their individual rates. In this way, the partnership as an entity is generally not subject to the "double taxation" associated with corporations. Subject to limitations, partners may be able to deduct certain partnership losses against personal income from other sources, like a salary from a "day job," interest on savings, dividends from other investments, and gains from the sale of non-business property. If a partner files jointly with a spouse, these business losses may also offset the spouse's income.

      • Although the partnership itself pays no income tax, it must file an information return, Form 1065, annually with the IRS and provide the partners with a copy of their K-1. This return shows the partnership's income, deductions, and other required information, and must include the names and addresses of each partner and each partner's distributive share of taxable income. Relatively sophisticated accounting is required to accurately complete this form, and this could bump up operating costs for your business. For more information on the tax obligations of partnerships, see the IRS's page, Tax Information for Partnerships (includes links to forms and other resources).

    If you are carrying on your online activities with a group of other journalists or bloggers (e.g., a co-blogging relationship) without a formal partnership agreement, it is still possible that a court could deem your group an informal legal or tax partnership, bringing with it potential personal liability for the actions of your co-publishers. This risk is greatly reduced, however, if your group does not intend to make a profit, or if your revenues are all scrupulously re-invested in the enterprise without distribution to group participants. For details, please see the Informal Group section of this Guide. Eric Goldman's article, Co-Blogging Law, gives the definitive treatment of liability pitfalls for co-bloggers operating informally.

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    Partnership Agreements

    Before commencing operations, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. The agreement normally specifies the amount of capital or the kinds of services that each partner is to contribute to the partnership, and it specifies how profits and losses are to be allocated to the partners. The agreement specifies the identity and status of the partners, the scope and limitation of partnership activities, and the managerial powers and authority of the partners. The agreement may also detail how the partnership is to be operated: who is to work full-time, and in what capacity, how management will be compensated, whether unanimous agreement is needed to admit new partners, how partnership decisions are to be made, the withdrawal or expulsion of partners, and how and when the partnership is to be dissolved.

    Drafting a partnership agreement can be complex, and partners may want the assistance of a lawyer to protect their interests, thus driving up costs. But there are strategies for writing a satisfactory partnership agreement without the expense of hiring a lawyer. FindLaw has an overview of creating a partnership agreement and some sample agreements, including actual partnership agreements from various companies. You can also purchase form partnership agreements at office supply stores or various places online.

    If you do not sign a partnership agreement, certain aspects of your relationship with your partner will be determined by state law that may be difficult to find or understand, and may not be what you would expect. A written agreement can help to avoid confusion or conflict when unexpected circumstances arise. Even if no partnership agreement exists, two or more people working together can be held to have established a partnership. If an informal partnership decides later to incorporate or officially form another entity, it may be necessary to document the informal partnership for tax purposes or to convey properly the interests of the informal partnership to the new entity.

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    Limited Liability Company

    Limited liability companies (LLCs) have become the most common typeof new business since their introduction by state laws in the last 30 years because LLCs combine the tax advantages of partnerships with the limited liability of corporations. This business form may be a good option for a website or blog with significant liability exposure. Owners of an LLC are called "members." You can operate an LLC as the sole owner (single-member) or in conjunction with fellow owners (multi-member). Members can run the business by themselves, or hire employees and/or independent contractors to carry out tasks for them. Among other requirements discussed below, an LLC is formed by filing articles of organization with the state and executing a formal operating agreement,which sets down ground rules for what capital contributions arerequired from the members, how the business will be managed, and how profits and losses will be allocated, among other things.

    In determining whether you want to operate as an LLC, you may want to consider the following factors:

    • Liability: Members of an LLC enjoy limited liability for the debts and obligations of the business, including liability for the unlawful acts of other members and employees. For instance, if a fellow member writes a defamatory article or posts copyright infringing material on your jointly-run website or blog, then your liability ordinarily is limited to amounts invested in the LLC. The same goes for a defamatory article or infringing post published by an employee of the LLC on the company website. Under some circumstances, you could still be held personally liable your own unlawful actions, but for the most part your personal assets would be off limits.
    • LLCs, like corporations, are subject to the legal doctrine known as "piercing the corporate veil," which can result in members losing limited liability protection in extremely rare circumstances.

    • If you apply for a small business loan, the lender probably will require you to give a personal guarantee. In that case, you are personally responsible for the paying back the debt, even if the business is an LLC and even if there is no basis for piercing the corporate veil.
    • Formation: Forming an LLC is moderate in terms of burden and cost. Please see the Forming an LLC section for details on the required (and advisable) steps. It requires filing articles of organization with a state office, usually the Secretary of State. Creating and submitting articles of organization for an LLC is simple and generally does not require the assistance of a lawyer, but there usually are significant filing fees. LLCs do not have the perpetual existence of corporations, and many states require that the duration of the LLC be specified in the articles of organization. You and your fellow members should also draft and execute a operating agreement, and some states require this. Drafting one that is highly customized to your business may involve some complexity. It will be up to you and your fellow members whether the assistance of a lawyer is required.

    • Management Structure: You have a great deal of flexibility in how you structure the management of an LLC because members may designate their desired management structure in the operating agreement. In general, LLCs are attractive because they allow for an informal, de-centralized management style with the members taking direct control over the day-to-day management of the business.
    • It is important to include a clause regarding the desired management structure in the articles of organization, in addition to the operating agreement, to make sure the members' choice of structure is honored under state law.
    • Operation: Operating an LLC is moderate in terms of burden and cost. As a general matter, there are fewer formalities associated with running an LLC than a corporation, and members can customize meeting, voting, and other operating procedures in the the operating agreement. However, in order to maintain their limited liability protection, members should observe certain formalities, such as keeping detailed financial records and recording minutes of major decisions. Additionally, state laws impose record-keeping requirements, as well as annual or biennial reporting requirements (and fees), all of which tend to drive up the cost of operating as an LLC. Some states place an annual franchise tax on LLCs. For details on annual/biennial reporting requirements, fees, and franchise taxes, see the the State Law: Forming an LLC section. This is all in addition to the tax and other regulatory obligations imposed on all small businesses. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

    • Ownership of Assets/Distribution of Profits: Assets of the LLC, including those originally contributed by members, are owned by the company, not by the individual members. The property rights of LLC members include rights in management and control of the business and financial rights to share in profits, distributions, and other financial benefits. Allocation of profits among members is generally set in the operating agreement, and members are free to structure the distribution any way they please. Absent a provision in the operating agreement, state law will determine whether profits and losses are distributed on a per capita basis (i.e., 4 members, each get 1/4 share) or based on the amount of capital contributed to the business. While a member's economic rights in an LLC may be transferred, the transferee cannot become a full member of the LLC unless the other LLC members unanimously consent.
    • Among the most important assets of any business that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.
    • Tax Treatment: Members of an LLC can choose to be taxed as a partnership or a corporation. If the LLC is treated as a partnership (which in the case of an LLC with multiple members, it would be absent the election below), then the LLC's income and expenses are "passed through" to the members, and they pay tax on their share of the profits at their individual income tax rates. In this way, they generally are not subject to the "double taxation" associated with corporations. If members elect to have the LLC taxed as a corporation using a Form 8832 - Entity Classification Election, the LLC will file its own income tax returns.  Members need not file Form 8832 if  they want the LLC treated as a partnership because the default entity is a partnership. Special, but similar, rules apply for single-member LLCs. For details on the tax obligations of LLCs, see the Limited Liability Company page on the IRS website.

    • Other Considerations: If you want your LLC to "do business" in states other than the one in which it is organized, you need to register as a "foreign" company doing business in that state. You do not need to do this simply because your website reaches the residents of other states. It might be an issue, however, if one of the members of the LLC worked (i.e., contributed content to the website or blog) from another state, and it would likely be required if your LLC had an office there. State procedures for obtaining this registration vary, but commonly there is a specific form that you need to complete, and you will need to submit copies of the articles of organization and a certificate of good standing from your state. There will also be a registration fee. To get the process started, you should visit the Secretary of State's website for the state in which you want to register.

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    Articles of Organization

    You must file formal articles of organization with your state (usually with the Secretary of State) and pay a filing fee in order to form an LLC. The filing fee generally ranges between $70 and $200 depending on the state, but certain states have higher fees (e.g., Illinois ($500), Massachusetts ($500), and Texas ($300)). See the State Law: Forming an LLC section for details on state filing fees.

    The articles function like the constitution for the LLC. Ordinarily, the document is short and simple, and you can prepare your own in a few minutes by filling in the form provided by your state's filing office or preparing your own based on a sample. Generally, all of the members may prepare and sign the articles, or they can appoint one person to do so. Each state has its own required version of this document, so the precise requirements may vary. Below is a list of some of the most common information required by the states:

    • Company Name: You must set forth the name of the LLC, which must distinguish it from other companies and identify it as a limited liability company. For more on naming requirements, see the state pages on forming an LLC.
    • Name and Address of Registered Agent: Most states require the name and address (not a P.O. Box) of the LLC's registered agent in the state of formation. The purpose of the registered agent is to provide a legal address for service of process in the event of a lawsuit. The registered agent is also where the state government sends official documents required each year for tax and legal purposes. If your LLC organizes in the same state where you do business, a member or employee of the LLC can usually serve as the registered agent. If your LLC organizes in a state other than where it does business, then you will have to hire a registered agent in the state of organization. You can find and hire registered agent service companies online, and frequently they can answer questions and provide other assistance with the formation process.
    • Legal Address of the Company: Some states require that you include the address of the LLC's principal office (whether or not that address is inside or outside the state of organization). This is distinct from the address of the registered agent discussed above, although in some circumstances this address could be the same (i.e., when a member or employee is serving as the registered agent).
    • Business Purpose: Some states require a statement about the LLC's "business purpose." Most states allow a general clause stating that the company is formed to engage in "all lawful business." It is a good idea to use this general language to avoid constraining your business activities in the future should the business move in unanticipated directions.
    • Names and Addresses of Initial Members: Most states require the articles to list the name and addresses of the initial members (i.e., owners), especially if the business will be managed by its members.
    • Name and Address of the LLC's Organizer: Most states require the articles to list the name and address of the person filing the articles. A signature will be required as well.
    • Desired Management Structure: You should state whether the LLC is to be managed by its members in a de-centralized fashion ("member-managed") or by some designated group of "managers" (who may or may not be members as well) in a centralized fashion ("manager-managed"). Most state forms have a box relating to this issue on their prepared form.
    • Duration of the Firm and Whether the Members Can Continue the LLC After a Member Dissociates: Many states require that the duration of the firm be specified in the articles of organization. You also may want to include a statement indicating whether the LLC can continue after a member withdraws from the business.

    You can find the required forms and sample articles of organization for the fifteen most populous U.S. states and the District of Columbia in the state pages on forming an LLC.

    If you want to amend the articles of organization, you can do so by filing articles of amendment with the same official to whom you submitted the original. Usually there is a prepared form.

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    Operating Agreement

    An operating agreement is the basic written agreement between the members (i.e., owners) of the LLC, or between the members and the managers of the company, if there are managers. In most states, creating an operating agreement is not a legal requirement, but it is highly advisable for the smooth operation of your business and for avoiding internal disputes. Even if you will form a single-member LLC, you should create an operating agreement between yourself (as a member) and the company in order to separate your business and personal affairs. Many states have laws saying that an operating agreement for a single-member LLC is not invalid simply because only one individual signed the document.

    Although there is no set criteria for the content of an operating agreement, it usually covers topics such as:

    • the initial members of the LLC;
    • the members' percentage interests in the business;
    • the allocation of profits and losses among members;
    • the capital contributions of members;
    • the members' voting power;
    • the desired management structure -- i.e., whether the LLC is to be managed by its members in a de-centralized fashion ("member-managed") or by some designated group of managers (who may or may not be members as well) in a centralized fashion ("manager-managed");
    • in the event that the company will be run by managers (or some subset of the members), the agreement should set out the division of responsibility between managers and members, and describe the roles that managers and members are expected to play in operating the business;
    • procedures for admitting new members and for member withdrawal;
    • rules for holding meetings and taking votes; and
    • "buy-sell" provisions, which set out rules for what to do when a member wants to sell his or her interest, dies, or becomes disabled.

    Free sample operating agreements for most U.S. states are available from the Internet Legal Research Group. Whether or not you need the assistance of a lawyer to craft a good operating agreement depends upon the level of customization you want to achieve.

    An operating agreements does not have to be filed with the state like the articles of organization, and they may be changed without officially filing amendments. If you do alter the agreement, remember to keep a copy of the previous version on file.

    LLC Records

    The amount of paperwork and other formalities required by state governments in order to form and properly maintain a limited liability company should not be underestimated. In addition to the two major "constitutional" documents (the articles of organization and the operating agreement), LLCs are required to keep copies of a number of other records relating to the the organization, finances, and ownership of the business.

    State record-keeping requirements vary. You can find links to your state's specific record-keeping requirements in the state pages on forming an LLC. However, as a matter of best practices you should keep copies of the following documents in the company's principal office in the state in which it was formed:

    • the articles of organization and any amendments to it;

    • the certificate of organization or other official paperwork mailed to you by the state after filing articles;

    • a current list of the full names and last known addresses of all past and present members;

    • a current list of the full names and last known addresses of all past and present managers;

    • all federal, state, and local income tax returns for the last three years;

    • Any other financial statements from the last three years;

    • all written operating agreements used currently or in the past;

    • any other documents filed with the state concerning the LLC; and

    • documentation of the following, either in the articles of organization, operating agreement, or other document:

      • the amount of capital contributions of each member in terms of cash or agreed value of other property or services contributed;

      • details of events, times, or other agreements made for further contributions to be made from members, if any;

      • the share of profits and losses due each member;

      • any right of a member to receive distributions of funds;

      • any right of a manager to make distributions of funds to a member;

      • each member's respective voting rights;

      • details of events that would cause the LLC to be dissolved and its affairs wound up, if any.

    These requirements are in addition to those required for all small businesses for tax purposes. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

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    Corporation

    The corporation is the best known business form. Most big companies that are "household names" are corporations, including companies like Google Inc., Microsoft Corp., and Yahoo! Inc. A corporation has a legal identity that is separate from its owners (usually referred to as "shareholders" or "stockholders"). Although many corporations are large organizations with many employees, it is possible for a single person to form and operate a corporation individually.

    Operating as a corporation offers limited liability to shareholders, transferability of ownership interests (shares), and perpetual existence of the corporation, even after original shareholders have left the business. Because most successful, big-name companies are corporations, many believe that operating as a corporation must be advantageous, but this is not always true. In fact, however, corporations often have disadvantages, including "double taxation" and the cost and hassle associated with forming and operating a corporation. Because of these disadvantages, in many cases an LLC will be a better choice for a small citizen media business with owners who are concerned about liability exposure. In fact, unless you plan on taking your business "public" (i.e., selling shares of the company to the general public) in the near future, or you are working with venture capitalists who require you to form a corporation, there generally are few reasons to operate your small business as a corporation.

    A few technical points are worth mentioning up front. First, when we mention a "corporation" in this guide, we mean a "C corporation" unless we specify otherwise. Probably all of the big companies you think of as "corporations" are C corporations. There is another type of corporation, however, called an "S corporation," which we discuss briefly on the S Corporation page. The important difference between the two is how they are treated for tax purposes. While S corporations are generally not subject to "double taxation" like C corporations, they still require most, if not all, of the costly and burdensome formalities associated with C corporations, and they offer no significant benefits over LLCs. Second, certain states recognize what is known as a "close corporation," which we discuss briefly on the Close Corporation page. This business form generally allows for greater flexibility and informality in managing business affairs than a C corporation, but it requires creation of a shareholders' agreement and significant limitations on transfer of stock, and LLCs are generally regarded as superior vehicles for obtaining an informal, de-centralized management structure with limited liability.

    In determining whether you want to operate as a corporation, you may want to consider the following factors:

    • Liability: Shareholders of a corporation enjoy limited liability for the debts and obligations of the business, including liability for the unlawful acts of other shareholders and employees. For instance, if a fellow shareholder writes a defamatory article or posts copyright infringing material on your jointly-run website or blog, then your liability ordinarily is limited to amounts invested in the corporation. The same goes for a defamatory article or infringing post published by an employee on the company's site. However, limited liability does not relieve you from personal liability for your own unlawful actions.
    • Corporations, like LLCs, are subject to the legal doctrine known as "piercing the corporate veil," which can result in shareholders losing limited liability protection in extremely rare circumstances.
    • If you apply for a small business loan, the lender probably will require you to give a personal guarantee. In that case, you are personally responsible for the paying back the debt, even if the business is a corporation and even if there is no basis for piercing the corporate veil.
    • Formation: Forming a corporation is moderate in terms of burden and cost. Please see the Forming a Corporation section for details on the required steps. The steps are usually carried out by the initial owners of the corporation (called "incorporators" in legal terminology), although owners can hire others to do it for them. Corporations are governed by state law, and formation requires filing articles of incorporation with a state office, usually the Secretary of State. Creating and submitting articles of incorporation is simple and generally does not require the assistance of a lawyer, but there usually are significant filing fees. It also requires creation of corporate bylaws, which are internal rules and procedures regarding the operation of the corporation that are stored at the corporation's place of business but not filed with the state. Drafting bylaws that are highly customized to your business may involve some complexity. It will be up to you and your fellow shareholders whether the assistance of a lawyer is required.
    • Forming a corporation is slightly more burdensome than forming an LLC. One difference is that the owners of a newly formed corporation should hold an initial organizational meeting to adopt bylaws, elect initial directors (if not named in the articles of incorporation), and authorize the issuance of stock to themselves, among other things. Minutes of this meeting must be recorded. Another difference is that stock must be issued, and this requires creation of formal stock certificates and a stock ledger for record-keeping purposes. Neither of these steps are required to form an LLC.
    • Management Structure: Corporations are centrally managed by a board of directors, which is charged with making major strategic and financial decisions for the company and ensuring compliance with relevant legal and accounting requirements. The board of directors meets and makes decisions collectively. State corporate laws and corporate bylaws generally set out voting requirements for valid board action, such as how many directors are needed to constitute a quorum and whether action in writing without a formal meeting is permitted. The full panoply of issues relating to a properly functioning board of directors is beyond the scope of this Guide.
    • The board of directors nominates the officers of the corporation to run the day-to-day affairs of the company and oversee the activities of employees (if any). Common examples of corporate officers include president, vice president, secretary, and chief financial officer. Effective day-to-day control of the business will be in the hands of these officers.

    • Note that, if a corporation has single shareholder, state laws allow that shareholder to occupy the role of sole director and sole officer, all at once.

    • In some states, shareholders can opt out of the centralized management structure by forming a close corporation, but there are significant disadvantages to forming a close corporation, and owners often choose to form an LLC instead. Please see the Close Corporation section for details.
    • Operation: Operating a corporation is moderately burdensome and costly, somewhat more so than operating an LLC. State corporate laws provide for cumbersome formalities governing things like the election and removal of directors, filling vacancies on the board, holding board and shareholder meetings, keeping minutes of those meetings, recording board resolutions, and shareholder approval of major management decisions. Additionally, state laws impose record-keeping requirements, as well as annual or biennial reporting requirements (and fees), all of which tend to drive up the cost of operating as a corporation. For details on annual/biennial reporting requirements and fees, see the the State Law: Forming a Corporation section. This is all in addition to the tax and other regulatory obligations imposed on all small businesses. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.
    • Large, publicly-traded corporations generally have additional disclosure obligations under federal (and sometimes state) securities laws. However, a small owner-operated corporation that issues shares to a small number of people generally will be exempt from these disclosure requirements. If you contemplate issuing shares to more than ten people, or to people not actively involved in the business, you should consult an attorney regarding potential securities laws obligations.
    • Ownership of Assets/Distribution of Profits: The corporation owns the assets of the business, and shareholders have no direct financial interest in them. Shareholders own the business itself, but their direct financial interest is in the shares of stock that they own. Shares entitle their holder to a portion of corporate profits, distributed by the company in the form of dividends. The percentage of profits received as a dividend by a particular shareholder depends upon that shareholder's proportion of share ownership. Thus, if you own 50% of the outstanding stock in the company, you would be entitled to receive 50% of the dividends if and when the company makes a distribution. Note that corporations do not have to distribute dividends every year; rather, the board of directors decides whether to distribute them or to invest proceeds back into the business.
    • Shareholders also can sell their shares, unless there is a restriction on transfer imposed in the articles of incorporation or a shareholders' agreement (generally an issue with close corporations). In the case of large, publicly-traded corporations, the price that a shareholder can get for his/her shares is determined by the price on a stock market such as the New York Stock Exchange. In the case of smaller companies that are not publicly-traded, the amount for which a shareholder can sell her shares is negotiated between the parties to the transaction, and generally reflects their assessment of the value of that percentage of the business represented by the selling party's shares.

    • Among the most important assets of any business that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.
    • Tax Treatment: One of the major (at least perceived) disadvantages of operating as a corporation is "double taxation." The profits of corporations are normally taxed twice -- once at the corporate level (at the applicable state and federal corporate income tax rate ), and again on the individual level when profits are distributed to shareholders as dividends (at the applicable individual income tax rate - under current law, dividends paid by corporations generally are subject to tax at the same rate as capital gains or 15%). For some corporations, paying reasonable salaries to shareholders who participate in running the business can help ameliorate the potential burdens of double taxation to some extent. Shareholders of a corporation cannot deduct business losses to offset income from other sources. Also, corporations are generally taxed at a relatively high rate (currently about 34% or 35%) on its earned income, which may be higher than applicable indivdidual rates.
    • Other Considerations
    • The corporate form offers full transferability of shares, which makes it easier for a company to raise capital from outside investors, and it also makes it somewhat easier for individual shareholders to "get out" of the business by selling their shares to other shareholders or outsiders. This may be a major advantage for those looking to expand the business quickly through outside investment. However, if you are interested in operating a small business with others that you know and trust, and not giving up significant control of the business, the free transferability of shares may be a disadvantage to adopting the corporate form.

    • If you want your corporation to "do business" in states other than the one in which it is incorporated, you need to register as a "foreign" corporation doing business in that state. You do not need to do this simply because your website reaches the residents of other states. It might be an issue, however, if one of the officers or employees of the corporation worked (i.e., contributed content to the website or blog) from another state, and it would likely be required if your corporation had an office there. State procedures for obtaining this registration vary, but commonly there is a specific form that you need to complete, and you will need to submit copies of the articles of incorporation and a certificate of good standing from your state. There will also be a registration fee. To get the process started, you should visit the Secretary of State's website for the state in which you want to register.

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    Articles of Incorporation

    You must file articles of incorporation (sometimes called a "certificate of incorporation" or "charter") with your state (usually with the Secretary of State) and pay a filing fee in order to form a corporation. The filing fee generally ranges between $70 and $200 depending on the state, but certain states have higher fees -- for example, Massachusetts ($275) and Texas ($300). See the state pages on forming a corporation for details on state filing fees.

    The articles function like the constitution for the corporation. Ordinarily, the document is short and simple, and you can prepare your own in a few minutes by filling in the form provided by your state's filing office, or by drafting your own based on a sample. Generally, all those people who will be initial shareholders may prepare and sign the articles, or they can appoint one person to do so. Each state has its own required version of this document, so the precise requirements may vary. Below is a list of information commonly required by the states:

    • Company Name: You must include the name of the corporation, which typically must include "Corporation," "Incorporated," "Company," "Limited," or an abbreviation of one of these words, such as “Inc.” or "Corp." Most states will not allow two companies to have the same name, nor will they allow your corporation to adopt a name that is deceptively similar to another company's name. For more on naming requirements, see the state pages on forming a corporation.
    • Name and Address of Registered Agent: Most states require the name and address (not a P.O. Box) of the corporation's registered agent in the state of incorporation. The purpose of the registered agent is to provide a legal address for service of process in the event of a lawsuit. The registered agent is also where the state government sends official documents required each year for tax and legal purposes, such as franchise tax notices and annual reports. If your corporation incorporates in the same state where you do business, an officer of the corporation can usually serve as the registered agent. If your corporation incorporates in a state other than where it does business, then you will have to hire a registered agent in the state of incorporation. You can find and hire registered agent service companies online, and frequently they can answer questions and provide other assistance with the formation process.
    • Legal Address of the Company: Some states require that you include the address of the corporation's principal office (whether or not that address is inside or outside the state of incorporation). This is distinct from the address of the registered agent discussed above, although in some circumstances this address could be the same (i.e., when a corporate officer is serving as the registered agent).
    • Incorporator(s): An incorporator is the person preparing and filing the formation documents with the state. Most states require the name and signature of the incorporator or incorporators to be included in the articles of incorporation. Some states also require that you include the incorporator’s address.
    • Director(s): Some states require that you list the names and addresses of the initial directors of the corporation in the articles. If the corporation will have only one shareholder, that shareholder may also serve as the sole director. When there will be more than one shareholder, the number of required directors differs from state to state, and some require more than one director. See the state pages for details on the number of directors required by the fifteen most populous states and the District of Columbia.
    In other states, you are not required to identify the initial directors in the articles of incorporation (although you may do so if you want). When the initial directors are not named in the articles, the incorporator or incorporators have the authority to manage the affairs of the corporation until directors are elected. In this capacity, they may do whatever is necessary to complete the organization of the corporation, including calling an organizational meeting for adopting bylaws and electing directors.
    • Business Purpose: Virtually all states require a statement about the corporation's "business purpose." Most states allow a general clause stating that the company is formed to engage in "all lawful business." It is a good idea where permitted to use this general language to avoid constraining your business activities in the future should the business move in unanticipated directions.
    • Number of Authorized Shares of Stock: You generally must state in the articles how many shares of stock the corporation is authorized to issue. Stock is a representation of ownership of the corporation, and this ownership is divisible based on the number of shares that the corporation issues. For instance, say the corporation issues 100 shares -- if you own all 100 shares, then you own the entire company. If you own 50 shares, then you own half of the company, and the remaining 50 shares (and 50% ownership interest) can be divided up among other people (in return for capital contributions, services, as a gift). Unless shares of stock are designated as non-voting stock, shares give their owner the ability to vote for the election of directors in proportion with their ownership interest. (So, if you own 100% of the stock, you get to elect the directors yourself; if you own 75% of the stock, you get 75% of the say in who is elected; and so on).
    It is important to keep in mind that, in the articles of incorporation, you designate the number of shares the corporation is authorized to issue -- the corporation is not required to issue all of those shares right away (or ever). It is common practice for corporations to hold on to authorized but non-issued shares in order to add additional owners later or to increase the ownership interest of a current shareholder. In the articles, it is generally a good idea to authorize a large number of shares (several thousand), keeping in mind that the number of authorized shares may be tied to the corporation's state franchise tax liability. For instance, in Delaware, it is a good idea for new corporations to authorize 3000 shares, because this is the maximum number of shares that a corporation can authorize and still qualify for the minimum $35.00 annual franchise tax.
    • Par Value: Some states require that the articles state the "par value" of the authorized shares. The par value is the share's minimum stated value -- meaning that a share cannot be sold for less than its par value. Par value of a share is not the same thing as its actual value, and the board of directors has discretion to set the price to be received for stock issued by the corporation without regard to par value (so long as that value is larger than par value, which it always is). Most companies set par value at $0.01 or $1 or no par (some states requiring a designation of par value will accept "no par").
    • Preferred Shares: If you plan to authorize preferred shares of stock in addition to common stock, you must include information about the preferred shares, along with information about the voting rights of the respective classes of stock. Preferred shares typically provide for preferential payments of dividends or distribution of assets upon termination of the business. Small business owners often avoid this legal complexity by choosing to authorize only common stock. This approach is simpler and meets the capitalization needs of most small businesses. If you plan on creating preferred shares, you should consult with an attorney before drafting your articles of incorporation.

    You can find the required forms and sample articles of incorporation for the fifteen most populous U.S. states and the District of Columbia in the state pages on forming a corporation.

    If you want to amend the articles, you can do so by filing articles of amendment with the same official to whom you submitted the original articles. There is usually a prepared form for doing this.

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    Corporate Bylaws

    Corporations are required to write and keep a record of their bylaws, but do not have to file them with a state office.

    Bylaws are the rules and procedures for how a corporation will operate and be governed. Although there is no set criteria for bylaws content, they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, how the board of directors will function, and to what extent directors and officers will be indemnified against liabilities arising out of performance of their duties. A comprehensive discussion of bylaw content is beyond the scope of this Guide.

    Drafting bylaws can be complex, but there are strategies for writing satisfactory bylaws without the expense of hiring a lawyer. FindLaw has posted links to the bylaws of many corporations. Some of these may prove useful as templates, although many of these companies have bylaws that are more complex than your small business would ever need.  For a small fee (approximately $15), Nolo Press offers a software program, eForm: Corporate Bylaws, which helps you generate bylaws.

    The incorporator(s) (i.e., person(s) filing the paperwork) or initial director(s) (if named in the articles of incorporation) generally have the authority to adopt a corporation's original bylaws at the corporation's organizational meeting.

    Bylaws may be changed without officially filing amendments.

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    S Corporation

    As an alternative to the ordinary "C corporation" discussed on the Corporation page, you may carry on your online publishing activities as an "S corporation." An S corporation has the same basic organizational structure as a C corporation, with some of the potential tax advantages of a partnership. A corporation obtains "S" status by filing Form 2553 with the IRS. An S corporation generally does not pay federal income tax at the entity level, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. However, an S corporation must file an annual tax return on Form 1120S with the IRS.

    S corporations are formed in the same way as C corporations, but with the "S" tax designation filed with the IRS via form 2553 within two-and-a-half months of the date of formation. Federal law imposes certain requirements on a corporation in order to qualify for "S" status: (1) the corporation may have no more than 100 shareholders; (2) all shareholders must be individuals, estates, or certain trusts (i.e., no corporations, LLCs, or partnerships); (3) no shareholder may be a nonresident alien; and (4) the corporation may only have one class of stock. There are additional requirements, which you can learn about by reading the Instructions for Form 2553.

    Your election of "S" status for federal tax purposes does not guarantee that the profits of your S corporation will not be taxed at the state level. The District of Columbia, for example, does not recognize "S" status and subjects the profits of S corporations to the ordinary state corporate income tax. Other states, such as California and Illinois, still tax the profits of S corporations, but at much lower rates than for C corporations. You can find more information about your state's tax laws in the state pages on forming a corporation.

    S corporations generally are preferable to C corporations for small businesses because they require basically the same amount of paperwork, but may incur less tax than a C corporation. One drawback of an S corporation, when compared to a partnership or LLC (which have the same potential tax benefits as S corporations), comes with the inflexibility of profit distribution. With an S corporation, profit distributions must be pro rata to stock ownership, not practical contribution to the success of the business or any other relevant criteria. Thus, if a person owns 10% of the company, but does 90% of the work, he or she may only be allocated 10% of the profits. (Keep in mind, however, that this person could be compensated for work through a salary.) Another drawback is that S corporations are generally subject to the same operating formalities required of ordinary corporations, and this makes them a somewhat costlier and more cumbersome option than an LLC or partnership. For details, see the Corporation section.

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    Close Corporation

    Some states, such as California and Texas, have special provisions allowing you to create what is known as a "statutory close corporation." Close corporations generally are formed in the same way as ordinary corporations, but the articles of incorporation for a close corporation must state that the corporation shall be considered a "close corporation" and impose restrictions on transfer of shares of stock. Close corporations also must have a limited number of shareholders -- often 35 or 50 shareholders maximum. For state-specific requirements on forming a close corporation, see the state pages on forming a corporation.

    The major reason for forming a close corporation is that it allows shareholders to operate the business under the terms of a shareholders' agreement, which can provide for greater flexibility and informality in managing the affairs of the business (as compared to an ordinary corporation). Shareholders of a close corporation may agree to waive certain operating formalities, such as required shareholder or board meetings. Pursuant to the terms of such an agreement, they can also dispense with the need to form a board of directors and name corporate officers, and they (the shareholders) may run the corporation themselves in a de-centralized fashion. (Incidentally, they may also agree to a distribution of corporate profits other than proportionally based on share ownership.) The downside is that a shareholders' agreement that allows shareholders to manage the corporation may make the shareholders liable for acts or omissions for which the corporate directors are usually liable.

    Operating as a close corporation is not popular among incorporators. Negotiating and drafting an effective shareholders' agreement may be a complex and costly undertaking, and there is no apparent advantage of operating as a close corporation rather than an LLC (which also features decentralized management and limited liabiliy and no double taxation). If you are interested in forming a close corporation, you should consult with a lawyer.

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    Double Taxation

    The profits of corporations are taxed twice -- once at the entity level (at the applicable state and federal corporate income tax rate), and again at the individual level when profits are distributed to individual owners as dividends (at the applicable individual income tax rate). Avoiding double taxation is one of the commonly noted advantages of operating as a sole proprietorship, partnership, or LLC. Nonprofit organizations that qualify for 501(c)(3) status are exempt from federal (and usually state) income tax at the entity level, so in a sense they avoid double taxation as well.

    As noted, avoiding double taxation generally is considered advantageous, but it may not always prove beneficial, depending on your particular circumstances. Owners of businesses whose income "passes through" to them for tax purposes must pay income tax on their share of the net profits of the business, regardless of the amount of money they actually take out of the business each year. Thus, even if all profits are reinvested into the business, the owners of these businesses must pay taxes on their share of the profits. Shareholders of a corporation, on the other hand, pay income tax only when those profits are actually distributed to them as dividends. In addition, paying reasonable salaries to shareholders who participate in the operation of the business can ameliorate the burden of income tax at the entity level to a certain extent. Additionally, there may be situations where you as an individual pay income tax at a rate that is higher than the corporate tax rate.

    Note: Tax questions are complex, and the details of such questions are beyond the scope of this guide. Consult a tax accountant and an attorney (if necessary) before choosing a business entity based on tax issues.

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    Corporate Records

    In addition to the two major "constitutional" documents (the articles of incorporation and the bylaws), corporations are required to keep copies of a number of other records relating to the the organization, finances, and ownership of the business.

    State record-keeping requirements vary. You can find links to your State's specific record-keeping requirements in the State Law: Forming a Corporation section of this Guide. However, as a matter of best practices you should keep copies of at least the following documents in the corporation's principal office (where it is operating on a day-to-day basis) and on file with the corporation's registered agent (this latter step is applicable only if the corporation is incorporated in a state other than the state in which it does business):

    • the articles of incorporation and any amendments;
    • the corporation's bylaws and any older versions used in the three most recent years;
    • a shareholders' agreement or close corporation agreement, if one exists;
    • minutes from shareholders' meetings for the three most recent years;
    • records of all actions taken by shareholders without a meeting for the three most recent years;
    • minutes from board of directors meetings for the three most recent years;
    • a list of the full names of all shareholders and their respective ownership interests;
    • a stock transfer ledger;
    • a list of the full names and last known addresses of all past and present directors;
    • a list of the full names and last known addresses of all past and present officers;
    • financial records, including federal, state, and local tax returns and reports, for the three most recent years;
    • all communications made to shareholders over the three most recent years;
    • annual or biennial reports or statements of information filed with the State for the three most recent years;
    • resolutions adopted by the board of directors in the three most recent years with respect to one or more classes or series of shares and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding;
    • resolutions adopted by the board of directors creating one or more classes or series of shares; and
    • any other documents filed with the State.

    These requirements are in addition to those required for all small businesses for tax purposes. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

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    Nonprofit Organization

    Surprisingly, there is no legal definition of a nonprofit organization. In general, a nonprofit organization is one that is organized to achieve a purpose other than generating profit. Despite this, a nonprofit organization is not precluded from making a profit or engaging in profit-making activities. It is prohibited from passing along any profits to those individuals who control it, like founders, directors, officers, employees, and members. Nothing, however, prevents a nonprofit from paying reasonable salaries to officers, employees, and others who perform a service for it.

    This section is aimed at those seeking to start and operate a nonprofit corporation that is a public charity under section 501(c)(3) of the U.S. Internal Revenue Code (the "tax code"). A corporation is the most common and generally most appropriate structure used to create a nonprofit organization. You should seek the advice of an experienced nonprofit lawyer if you wish to establish a nonprofit organization using some other business structure.

    Section 501(c)(3) of the tax code exempts certain nonprofit organizations from federal corporate income taxes. Gaining tax-exempt status gives a nonprofit corporation credibility with potential donors because it shows that the organization has a legitimate charitable purpose, a formal structure for accomplishing its goals, and is publicly accountable. Section 501(c)(3) tax exemptions are denied to any nonprofit organization engaging in certain political or legislative activities, which will be discussed below.

    Section 501(c)(3) classifies nonprofit organizations into private foundations and public charities. In all likelihood, you want your nonprofit organization to avoid being classified as a private foundation because a number of complex additional regulations and restrictions apply to them. When you fill out your application for 501(c)(3) tax-exempt status, you should request to be classified as a public charity in Part X of Form 1023, usually by checking the box in Line 5g, 5h, or 5i (depending on the nature of your funding).

    In order to qualify as a public charity, a nonprofit corporation must be formed and operated for a charitable purpose. "Charitable" is a narrow descriptor given the many types of organizations covered under section 501(c)(3). The section also applies to organizations with religious, educational, scientific, or literary purposes, among others. These purposes must be for the benefit of some significant section of society, whether it be the general public or a specific community.

    Additionally, a public charity must be publicly supported. This means that the nonprofit corporation must normally receive funds from governmental entities or multiple private donors. Contrast this with a private foundation, which typically gets its funds from a single source. The calculations behind what "public support" means are complicated, see the Nonprofit Law Blog's Public Support Tests for details.

    Keep in mind the following factors as you consider whether to operate as a nonprofit public charity corporation:

    Liability

    Like other corporate entities, nonprofit organizations can be sued for any number of reasons, including:

    • publishing defamatory statements
    • neglecting to pay taxes (tax exemptions under 501(c)(3) only cover federal corporate income tax; the nonprofit is still responsible for other taxes)
    • violating state charitable solicitation laws, antitrust laws, or the tax code by engaging in prohibited political activity or substantial lobbying
    • lawsuits common to any business: wrongful termination, employment discrimination, personal injury, and breach of contract

    Like shareholders in a for-profit corporation, directors of a nonprofit corporation, and other individuals who participate in the founding and/or operating of the nonprofit organization, enjoy limited liability for the debts and obligations of the organization, including for the unlawful acts of other directors, officers, and employees.

    • For example, assume you are a director of a nonprofit corporation for which you and others operate a blog about the environmental impacts of deep-sea fishing. If a fellow director or employee publishes a defamatory blog post or posts copyright infringing material on the nonprofit organization's website, you are not personally liable by virtue of your status as a director of the organization, and your liability ordinarily is limited to the amount you contributed to the nonprofit organization (if any).

    However, directors, officers, and employees may be personally liable for their own wrongful conduct, regardless of whether they are paid for their work or are volunteers.

    • For example, assume that you make defamatory statements about one of the larger fishing companies. The fishing company can sue you personally and satisfy the judgment out of your personal assets.

    Note that if you apply for a small business loan to help fund your nonprofit corporation, the lender probably will require you to give a personal guarantee. In that case, you are personally responsible for the paying back the debt, even if your business is a nonprofit corporation and even if there is no basis for piercing the corporate veil.

    Formation

    Nonprofit organizations usually incorporate in the state where they expect to do business. Forming a nonprofit 501(c)(3) corporation is burdensome. The section on Forming a Nonprofit Corporation provides the steps necessary to get established in general; the section on State Law: Forming a Nonprofit Corporation outlines what is required by the fifteen most populous U.S. states and the District of Columbia.

    There are two main steps involved in forming a nonprofit corporation:

    1. Incorporating as a nonprofit corporation at the state level

    If you want to incorporate, you must file articles of incorporation with a state office, usually the Secretary of State. Creating articles of incorporation for a nonprofit corporation can be more involved than creating one for a for-profit corporation because you will need to include language about the purpose of your nonprofit corporation in order to be eligible for 501(c)(3) tax exemptions. Drafting the articles of incorporation generally does not require the assistance of a lawyer, and usually the filing fees are significantly less than the filing fees for incorporating as a for-profit corporation.

    You will also need to create corporate bylaws which are the internal rules and procedures of the nonprofit corporation. Drafting bylaws that are highly customized to your business may involve some complexity. Additionally, you must keep a records book at the nonprofit's place of business.

    The incorporators and/or directors of a newly formed nonprofit corporation should hold an initial organizational meeting to adopt bylaws and elect initial directors (if not named in the articles of incorporation), among other things. Minutes of this meeting must be recorded.

    2. Applying for 501(c)(3) corporate income tax exemptions at the federal level

    You need to file Form 1023 in order to apply for tax-exempt status under 501(c)(3). The application process is complicated, but can be done without the assistance of a lawyer if you are willing to devote the requisite time and energy in to the process. IRS resources (both the website and the call centers) are of immense help as is Anthony Mancuso's book "How to Form a Nonprofit Corporation," which provides line-by-line guidance on how to complete the application form. For detailed information on how the IRS evaluates journalism non-profits to see whether they qualify for a tax exemption, see the Citizen Media Law Project's Guide to the Internal Revenue Service Decision-Making Process under Section 501(c)(3) for Journalism and Publishing Non-Profit Organizations.

    The filing fee for the application is high: $300 if your gross receipts have not exceeded or will not exceed $10,000 annually over a 4-year period, and $750 otherwise. You do not have to apply for tax-exempt status if you anticipate bringing in gross receipts of less than $5,000 per year. If you actually bring in more than $5,000 in any particular year, however, you will need to file Form 1023 within 90 days of the end of the year. See Application for 501(c)(3) Tax Exemption for details.

    Note that if the IRS classifies you as a private foundation and not a public charity, you should contact an experienced nonprofit lawyer immediately to understand the implications of such a classification.

    Management Structure

    Like other corporations, a nonprofit corporation consists of the following classes of people:

    • Incorporators: Incorporators form the nonprofit corporation.
    • Board of Directors: The board of directors makes major strategic and financial decisions for the organization and ensures compliance with relevant legal and accounting requirements.
    • Officers: Officers oversee day-to-day affairs; usually officers consist of the president, vice-president, secretary, and treasurer.
    • Employees: Employees execute the decisions made by the directors and officers.
    Note that any or all of these people may be volunteers and that the categories bleed into each other. Especially in nonprofit settings, force of personality becomes the key to the identity of the decision makers.

    Another category unique to nonprofits is members. Members are a special class of individuals and/or organizations that have rights to participate in the current and future affairs of the nonprofit organization. Nonprofit organizations are not required to have members. You should consult with an experienced nonprofit lawyer if you wish to become a membership organization.

    State corporate laws and the nonprofit organization's corporate bylaws govern such things as:

    • the required number of directors, or minimum and maximum sizes of the board
    • voting requirements for valid board action, such as how many directors are needed to constitute a quorum
    • whether action in writing without a formal meeting is permitted

    The full array of issues surrounding nonprofit governance is beyond the scope of this Guide. For example, there are reasons to both limit a board's numbers (concentrate control) and broaden a board's numbers (live up to the ideals of representation). A good legal professional or legal resource should be able to help you find the best structure for your nonprofit. For the board example above, in "Starting and Managing a Nonprofit Organization," Bruce R. Hopkins suggests creating an additional advisory committee, thus satisfying concerns of representation and control. You should seek out resources such as Hopkins' book, or consult with a lawyer experienced in nonprofit matters.

    Operation

    Operating a nonprofit organization is often burdensome and costly. There are reporting requirements and operating restrictions that you need to keep in mind in order to to comply with the law and maintain 501(c)(3) exempt status. Expect increased paperwork and red tape in order to comply with:

    • state corporate laws' formalities for corporate governance
    • state laws on charitable organizations' record-keeping requirements
    • IRS regulations on tax exemptions (do not underestimate the time and energy that you will need to spend organizing the fundraising arm of your nonprofit corporation in order to solicit and accept donations and remain a publicly supported public charity)
    • the public's right to inspect your nonprofit organization's corporate records book

    Note that the operating restrictions and requirements are even more stringent if your organization qualifies as a private foundation and not as a public charity.

    Additionally, you will also be responsible for the tax and other regulatory obligations imposed on all small businesses. For more on the tax obligations of small businesses, see the Tax Obligations of Small Businesses section and the IRS's informational guide, Publication 583 (1/2007), Starting a Business and Keeping Records.

    Ownership of Assets/Distribution of Profits

    Once incorporated, the newly created nonprofit organization is a separate legal entity from its incorporators, directors, and employees. In fact, a nonprofit has no owners, at least not in any ordinary sense. The nonprofit corporation owns all assets of the business and is entitled to receive all profits from its operation. Among the most important assets of any nonprofit corporation that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.

    Despite its name, a nonprofit organization is not precluded from making a profit or engaging in profit-making activities. However, a nonprofit is prohibited from passing along any profits to those individuals who control them, like founders, directors, officers, key employees, and members. (A handful of states allow a nonprofit corporation to issue stock as a mechanism of control, but no dividend rights accompany the issued stock.) Instead, a nonprofit organization must use any profits to further its program activities or "exempt functions." It may also invest profits in another tax-exempt organization.

    Although a nonprofit organization may not distribute profits to its directors, officers, key employees, or members, a nonprofit organization may pay its employees a salary and give them benefits. A nonprofit organization may also pay directors for their expenses and time spent attending director meetings. The key is that the salaries and payments must be reasonable. Excessive payments or exorbitant amounts posturing as salaries or compensation violate the tax code and may lead to penalties and a loss of tax-exempt status.

    Note: If you dissolve your nonprofit organization, you must invest all profits into another nonprofit organization.

    Tax Treatment

    If you obtain 501(c)(3) tax-exempt status, your nonprofit corporation will be exempt from paying federal corporate income tax. However, the 501(c)(3) tax exemption does not apply to unrelated business taxable income or "UBTI," which refers to income generated from regular trade or business activity that is not substantially related to the nonprofit organization's exempt purpose. 

    Note that your nonprofit corporation may engage in unrelated trade or business activity, but will be liable for the taxes on the gross income exceeding $1,000 generated by it. In this situation, you will need to file Form 990T, the UBTI return, with the IRS.

    For example, the sale of advertising in a periodical constitutes UBTI, according to the IRS. Therefore, if your nonprofit organization sells advertising space on a website, in a print periodical, or for a broadcast, you must report the income generated from advertising as taxable. However, you might be able to deduct the cost of selling advertising space as an ordinary and necessary trade or business expense. 

    For more information on advertising sales as UBTI, or UBTI in general, consult the IRS publication, Tax on Unrelated Business Income of Exempt Organizations. 

    If you achieve 501(c)(3) tax-exempt status, you will still need to file an annual tax return with the IRS, unless your organization's gross receipts are normally $25,000 or less. Organizations beyond the $25,000 threshold with gross receipts below $100,000 and total assets at the end of the year less than $250,000 can file the return on Form 990EZ. Organizations with gross receipts above $100,000 and assets above $250,000 must file the return on Form 990. For details, including how to calculate gross receipts, see the Instructions for Form 990 and Form 990-EZ.

    Beyond exemption for federal income tax, qualifying under 501(c)(3) provides another important benefit: donations to the organization will be tax deductible by donor, making fundraising easier. Moreover, some donors, like foundations and the federal government, are barred from funding projects that don't have 501(c)(3) status.

    You may also be eligible for other special benefits, such as:

    • discounted postal rates
    • state tax exemptions (such as sales tax), and limited tort liability
    • local tax exemptions, including property tax

    Taxation is a very technical subject and you should consider having the nonprofit corporation's tax returns and reports handled by an experienced tax accountant.

    Prohibition on Political and Legislative Activities

    An important issue is the federal tax code's rule against 501(c)(3) organizations engaging in political and legislative activities. Because the proscribed activities violate the tax code (and may result in the revocation of the organization's tax-exempt status, the imposition of an excise tax, and liability for back taxes), you must understand how 501(c)(3) defines each type of activity. See the section on Prohibitions on Political and Legislative Activities in this guide for more information.

    Other Considerations

    As discussed above, forming and maintaining a 501(c)(3) nonprofit corporation can take a lot of time, energy, and money, especially if you are beyond the gross receipts threshold requiring you to formally apply for 501(c)(3) exempt status. You may worry that the work needed to incorporate will distract you from your online publishing activities, but also believe that the benefits of tax-exempt status are too important to pass up.

    One option to explore is whether a relationship with a "fiscal sponsor" is right for you. Fiscal sponsorship is the mechanism by which a nonprofit organization with 501(c)(3) status lends its legal and nonprofit status to persons, groups, or businesses that engage in activities related to the sponsor's mission. Through fiscal sponsorship, you may be able to function as a nonprofit organization (including receiving tax-deductible donations) without going through the hassle of forming your own independent organization. Fiscal sponsorship also offers the possibility of benefiting from the sponsor's established administrative infrastructure, financial liquidity, and expertise. In exchange for these services, the fiscal sponsor generally keeps a percentage of each financial transaction or charges a monthly or yearly membership fee. Note that fiscal sponsors that work on a percentage basis or provide services beyond simply acting as an umbrella organization often have a minimum fundraising requirement for eligibility.

    Seeking a fiscal sponsor may be best if you are:

    • working on a short-term project
    • initiating a project that has yet to show long-term viability (in some cases fiscal sponsors may help a new project spin off as an independent nonprofit organization)
    • waiting for IRS approval on your application for the 501(c)(3) tax exemption
    • performing work effectively, but without access to support staff

    When evaluating potential fiscal sponsors, you may want to consider several factors, including: 

    • the mission and vision of the sponsoring group
    • the sponsoring group's administrative and management policies
    • whether the sponsoring group has sufficient financial resources to support you
    • whether the sponsoring group has human resource capacities
    • the transparency with which the sponsoring group operates
    • the accountability and financial integrity of the sponsoring group  

    When determining if fiscal sponsorship is right for you, you should weigh the benefits of gaining immediate tax-exempt status and administrative support (if selected) against the time and effort it takes to research fiscal sponsors and apply for sponsorship, the control relinquished in the relationship, and the fees charged by a sponsor.

    Some examples of fiscal sponsors include:

    • Fractured Atlas is an organization that offers fiscal sponsorship as well as other services (such as event liability insurance and even health insurance) to individuals or groups involved in the arts (including publishing). In order to apply, you must become a member. While rates for membership start at $7.50/month, there is no fee to apply for fiscal sponsorship. Once you are sponsored, Fractured Atlas will accept donations for you and act as a bank from which you can withdraw funds at any time. When you withdraw from your account, you are charged an administrative fee of the greater of $10 or 6% of the funds withdrawn. All sponsored groups can begin fundraising immediately once they are approved by the Fractured Atlas board.
    • The Tides Center is a large fiscal sponsor supporting programs that seek to accelerate social change. In addition to sponsorship, the Tides Center offers other office-related services such as human resources management and payroll management. Tides offers more comprehensive services and greater availability of experts than most fiscal sponsors and charges a fee equal to 9% of gross annual revenue. The Tides Center does not offer sponsorship to projects with less than $30,000 in annual funding and does not offer sponsorship to individuals.
    • Los Angeles-based Community Partners provides sponsorship services to southern California organizations. They do not have a minimum fund-raising requirement, but they analyze your business structure to determine the community's need for your project and the likelihood that your project will raise sufficient funding.

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    Articles of Incorporation for Nonprofits

    In order to form a nonprofit corporation, you must file articles of incorporation (sometimes called a "certificate of incorporation" or "charter document" or "articles of organization") with the state and pay a filing fee. The filing fee generally ranges between $30 and $125 depending on the state. See State Law: Forming a Nonprofit Corporation for details on state filing fees.

    The articles function like a constitution for the nonprofit corporation. Ordinarily, the document is short and simple, and you can prepare it on your own by filling in the form provided by your state. A number of items in the articles, however, are important in order to obtain tax-exempt status from the federal government, such as the statement of purpose and statements indicating that the organization will not engage in prohibited political and legislative activity and that all of its assets will be dedicated to its exempt purpose under 501(c)(3). These items are discussed below. Consult the IRS website for a list of the Required Provisions for Articles and sample articles of incorporation to help you draft articles that meet the federal requirements for tax-exemption. State requirements for nonprofit articles of incorporation vary, however, so you may need to adapt the IRS sample to meet your state's specific requirements. Below is a list of information commonly required by the states and the IRS:

    • Name of the Nonprofit Organization:
    As discussed in Forming a Nonprofit Corporation, you must include the name of the nonprofit corporation, which typically must include "Corporation" or "Incorporated" or an abbreviation of one of these words, such as “Inc.” or "Corp." Most states will not allow two companies to have the same name, nor will they allow your corporation to adopt a name that is deceptively similar to another company's name. For state-level information on naming requirements, see State Law: Forming a Nonprofit Corporation.
    • Name and Address of Registered Agent:
    Most states require the name and address (not a P.O. Box) of the nonprofit corporation's registered agent in the state of incorporation. The purpose of the registered agent is to provide a legal address for service of process in the event of a lawsuit. The registered agent is also where the state government sends official documents such as tax notices and annual reports. If your nonprofit corporation incorporates in the same state where you do business, an officer of the nonprofit corporation can usually serve as the registered agent. If your nonprofit corporation incorporates in a state other than where it does business, then you will have to hire a registered agent in the state of incorporation. You can find registered agent service companies online. Shop around and compare rates because there are many registered agent companies available.
    • Legal Address of the Nonprofit Corporation:
    Some states require that you include the address of the nonprofit corporation's principal office (whether or not that address is inside or outside the state of incorporation). This is distinct from the address of the registered agent discussed above, although in some circumstances this address could be the same (e.g., when a corporate officer is serving as the registered agent).
    • Duration of the Nonprofit Corporation:
    Some states ask how long your nonprofit corporation will be in existence. You should answer "perpetual" unless you know that the nonprofit has a definitive termination date.
    • Name of Incorporator(s):
    An incorporator is the person preparing and filing the formation documents with the state. Most states require the name and signature of the incorporator or incorporators to be included in the articles of incorporation. Some states also require that you include the incorporator’s address.
    • Name and Address of Director(s):
    Some states require that you list the names and addresses of the initial directors of the nonprofit corporation in the articles. In other states, you are not required to identify them (although you may do so if you want). See State Law: Forming a Nonprofit Corporation for details on the number of directors required by the fifteen largest U.S. states and the District of Columbia. When the initial directors are not named in the articles, the incorporator or incorporators have the authority to manage the affairs of the corporation until directors are elected. In this capacity, they may do whatever is necessary to complete the organization of the nonprofit corporation, including calling an organizational meeting for adopting bylaws and electing directors.
    • Statement of Purpose:
    Here you must state the purpose(s) for which the nonprofit corporation is formed. Although the articles of incorporation is a corporate formation document, the IRS requires the inclusion of specific language in the Statement of Purpose in order for the nonprofit corporation to qualify for 501(c)(3) tax exemption. The IRS offers the following language:

    Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code.

    Some states also ask for a Statement of Lawful Purpose and a Statement of Specific Purpose.

    A sample "Statement of Lawful Purpose":
    The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the laws of State.
    A sample "Statement of Specific Purpose":
    The specific purpose for which this corporation is organized is to publish a blog providing information to the public on deep sea fishing practices off Hawaii.
    • Other Items Emphasizing Your Nonprofit Status:
    The following items are important for making your nonprofit status clear and obtaining tax-exemption from the IRS. You should include separate statements indicating that the organization:

    is not for-profit:

    No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to its members, trustees, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in the Statement of Purpose hereof. The property of this corporation is irrevocably dedicated to [your 501(c)(3) exempt purpose(s)] and no part of the net income or assets of this corporation shall ever inure to the benefit of any director, officer, or member thereof, or to the benefit of any private individual.

    will not engage in prohibited political and legislative activity under 501(c)(3):

    No substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. Notwithstanding any other provision of these articles, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of this corporation.

    if dissolved, will distribute its assets within the meaning of 501(c)(3):

    Upon the dissolution of the corporation, assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or shall be distributed to the federal government, or to a state or local government, for a public purpose.

    You can find the required forms and sample articles of incorporation on your state's page. If you must amend the articles, you can do so by filing articles of amendment with the same official to whom you submitted the original articles (usually the Secretary of State).

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    Bylaws for Nonprofit Corporations

    Bylaws are the rules and procedures for how a nonprofit corporation will operate and be governed. Although there are no set criteria for bylaw content, they typically set forth internal rules and procedures for the nonprofit corporation, touching on such issues as:

    • the existence and responsibilities of nonprofit corporate officers and directors

    • the size of the board of directors and the manner and term of their election

    • how and when board meetings will be held, and who may call meetings

    • how the board of directors will function

    • how grant monies will be distributed (some donors require that the bylaws contain a provision barring any person who exercises supervisory powers to individually benefit from grant funds)

    A comprehensive discussion of bylaw content is beyond the scope of this Guide. Drafting bylaws can be complex, but there are strategies for writing satisfactory bylaws without the expense of hiring a lawyer. Nolo publishes Anthony Mancuso's "How to Form a Nonprofit Corporation," which guides the reader through creating bylaws appropriate to the nonprofit organization.

    Nonprofit corporations are required to write and keep a record of their bylaws, but do not have to file them with a state office. Thus, unlike amendments to the articles of incorporation, bylaws may be changed without officially filing amendments.

    The incorporator(s) (i.e., person(s) filing the paperwork) or initial director(s) (if named in the articles of incorporation) generally have the authority to adopt a nonprofit corporation's original bylaws at the nonprofit corporation's organizational meeting.

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    Corporate Records for Nonprofit Corporations

    In addition to the two major "constitutional" documents (the articles of incorporation and the bylaws), nonprofit corporations are required to keep copies of a number of other records relating to the organization, finances, and ownership of the business.

    State record-keeping requirements vary. You can find links to your state's specific record-keeping requirements in State Law: Forming a Nonprofit Corporation. However, as a matter of best practice you should keep copies the following documents in the nonprofit corporation's principal office (where it is operating on a day-to-day basis) and on file with the nonprofit corporation's registered agent (this latter step is applicable only if the nonprofit corporation is incorporated in a state other than where it does business):

    • the articles of incorporation and any amendments

    • the nonprofit corporation's bylaws and any older versions used in the three most recent years

    • minutes from board of directors meetings for the three most recent years

    • records of all actions taken by directors without a meeting for the three most recent years

    • a list of the full names and last known addresses of all past and present directors

    • a list of the full names and last known addresses of all past and present officers

    • financial records, including federal, state, and local tax returns and reports, for the three most recent years

    • annual or biennial reports or statements of information filed with the state for the three most recent years

    • any other documents filed with the state

    These requirements are in addition to the tax obligations for all small businesses. For more information, see the Tax Obligations of Small Businesses section and the IRS guide Publication 583 (1/2007), Starting a Business and Keeping Records.

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    Introduction to the 501(c)(3) Application Process

    We strongly recommend seeking the assistance of an attorney in applying for Section 501(c)(3) status. If you choose to apply for 501(c)(3) tax exemptions yourself, set aside an entire day to devote to the form; the IRS says it takes ten hours for the average person to complete. It is also important to understand how the IRS evaluates these applications; you can find more information about that process here.

    While line by line guidance on how to fill out Form 1023 and advice on strategy are beyond the scope of this Guide, here are the steps you will need to take when you are ready to start the application process:

    1. Ensure that your venture is organized as a nonprofit corporation under state law

    With very few exceptions, you must be formally organized as a nonprofit corporation under the laws of  a particular state in order to be eligible for a federal tax exemption.  Information about forming a nonprofit corporation can be found here.

    2. Check whether your nonprofit corporation has to go through the IRS application process in order to gain tax-exempt status

    Assuming that your nonprofit organization has been established as public charity with a 501(c)(3) purpose, you do not have to apply for federal tax exemption if the organization's gross receipts are normally less than $5,000 per taxable year.

    • The IRS states that a nonprofit organization does not normally have more than $5,000 annually in gross receipts if it had a total of:
    i. $7,500 or less in gross receipts, during its first tax year

    ii. $12,000 or less in gross receipts, during its first 2 tax years

    iii. $15,000 or less in gross receipts, during its first 3 tax years

    • Note that if your nonprofit corporation brings in more than the $5,000 threshold, it must file Form 1023 (Application for Recognition of Exemption) within 90 days of the end of the year.
    3. Before you start, make sure you have:
    • The current version of IRS Form 1023, which is the Application for Recognition of Exemption
    • The current version of IRS Form 2848 - Power of Attorney and Declaration of Representative (to allow someone other than your principal officer or director to represent the nonprofit corporation about issues concerning the application)
    • The current version of IRS Form 8821 - Tax Information Authorization (to authorize the IRS to provide information about the application to an employee other than a principal officer or director of the nonprofit corporation)
    • The federal EIN for your nonprofit corporation
    • Your mission statement
    4. Complete IRS Form 1023 soon after incorporating

    You will want to have your tax exempt status retroactive to the date of incorporation, so that your nonprofit corporation can take advantage of the exemptions and so that any donations are tax-deductible. You have 15 months from the date of incorporation to file Form 1023, with a 12 month extension. (If you delay, your tax exempt status is retroactive to the date of application.)

    5. Request public charity classification in Part X of your application

    Every organization that qualifies for 501(c)(3) exempt status is further classified into a public charity or a private foundation. Private foundations are subject to different tax obligations and the IRS imposes additional restrictions and requirements on them. In all likelihood, you will want your nonprofit organization to avoid being classified as a private foundation. To do so, you must give notice to the IRS that your organization is a public charity. You do this in Part X of 1023, usually by checking the box next to Line 5g, 5h, or 5i (depending on the nature of your funding).

    6. While Your Application Is Pending

    While waiting for the IRS to approve your application, your nonprofit corporation may operate as a tax-exempt organization. When you file your annual federal and state information returns for your nonprofit corporation, note that your 501(c)(3) application is pending IRS approval.

    7. Advance and Definitive Rulings

    If you have not completed a tax year of at least 8 months at the time of application, you must ask for an advance ruling.

    • The IRS will issue an advance ruling if it believes that the information you have submitted qualifies your nonprofit organization for tax-exempt status. After five years, the IRS will again look at your nonprofit corporation's annual information returns to evaluate whether the nonprofit corporation has been operating according to the requirements set forth in 501(c)(3). At this point, the IRS will issue a determination letter containing a definitive ruling, in which it will either reject your application or recognize your nonprofit corporation's exempt status and provide its public charity classification.
    If you have completed a tax year of at least 8 months at the time of application, you may ask for a definitive ruling or an advance ruling.
    • Although advance rulings are tentative, they do have certain advantages. They are easier and faster to obtain, and at the end of the process, the IRS has the benefit of five years of actual operation details on which to base its conclusion. If you are an established nonprofit that clearly qualifies for public charity status, you may want to take the risk and request a definitive ruling. However, the better option for most nonprofit organizations is to request an advance ruling. You will have to weigh your options and figure out which one works best for you.
    Note that the determination letter is an important document that should be filed in the corporate records book. Additionally, read the determination letter carefully. If you have any questions about its contents, call the IRS in order to completely understand how the IRS classifies your nonprofit corporation. If the letter describes your nonprofit corporation as a private foundation, seek legal help immediately to understand the implications of such a classification.

    8. Know your audience

    Remember that your application is not only going to be read by the IRS, but also (at least potentially) by members of the public.

    9. Sign up for "Exempt Organizations Update"

    Stay abreast with the latest developments about 501(c)(3) with Exempt Organizations Update, a newsletter published by the IRS.

    ***

    OTHER RESOURCES:

    What is Section 501(c)(3) status, and does it make sense for your organization?

    Guide to the IRS decision-making process for journalism non-profits

    Successful 501(c)(3) applications

     

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    Prohibitions on Political and Legislative Activities

    An important issue is the federal tax code's rule against 501(c)(3) organizations engaging in political and legislative activities. Because the proscribed activities violate the tax code (and may result in the revocation of the organization's tax-exempt status, the imposition of an excise tax, and liability for back taxes), you must understand how 501(c)(3) defines each type of activity.

    a. Political activity

    Political activity refers to direct or indirect participation in any political campaign for elected public office. The focus is the partisan nature of the activity. Some guidelines:

    • You may not, on behalf of your organization, make a contribution to campaign funds, or issue a public statement in favor of or in opposition to a candidate for public office.
    • You may engage in issue advocacy, including that which differentiates candidates running for public office, as long as you do not favor or oppose a candidate.
    • You may, on behalf of your organization, engage in nonpartisan activities that focus on the electoral process, such as publishing voter education guides and voter registration, so long as they do not favor one candidate over another.

    Deciding whether or not any particular activity is prohibited "political activity" may often require some difficult line drawing. Refer to the IRS' Revenue Ruling 2007-41 for more information. The Revenue Ruling outlines 21 scenarios and explains why each situation does or does not run afoul of the ban on political campaign intervention.

    b. Legislative activity

    Legislative activity refers to attempts to influence legislation, popularly known as lobbying. While the prohibition discussed above bars any political activity supporting or opposing a candidate running for office, the prohibition on legislative activity is more nuanced. No "substantial part" of a 501(c)(3) organization's activities may be devoted to lobbying.

    Influencing legislation includes any of the following activities:

    • support of or opposition to legislation
    • direct contact with members of a legislative body
    • urging the public, or a segment of the public, to contact members of a legislative body

    The focus is on influencing legislation and legislative bodies, like Congress or a state legislature, and not on influencing executive, judicial, or administrative bodies. However, the prohibition against political activity applies to these arenas as well. For example, a nonprofit organization may not endorse or oppose candidates running for judicial office. Refer to the IRS Publication on Lobbying which lists detailed examples of legislative activities.

    At this point you may be asking yourself: what exactly can I do without jeopardizing my 501(c)(3) status? You may author and publish:

    • studies, research, or analysis performed by nonpartisan entities
    • articles disucssing issues of public policy in an educational manner, which according to the tax code means presenting "a sufficiently full and fair exposition of [the] pertinent facts as to permit an individual or the public to form an independent opinion or conclusion”
    • your own views, in a manner clearly separate from those of the organization
    Neither the bar on political activity nor the ban on legislative activity can restrain your right of free expression. However, the right of free expression is guaranteed to you and not your nonprofit organization. Consequently, when you make these types of statements, you should be clear that your comments are personal to you and are not representative of the nonprofit organization.

    This area of law is complex. In particular, determining whether your writing is "political activity" or "issue advocacy" requires difficult and fact-sensitive analysis. In addition, figuring out whether a particular lobbying activity involves a "substantial part" of your organization's overall activity is challenging. Given the penalties for violating these prohibitions, you should seek a lawyer's assistance when deciding whether to undertake activities that seem borderline.

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    Cooperative Corporation

    A cooperative corporation (or simply, a "cooperative") is a special form of corporation that places ownership and/or control of the corporation in the hands of the employees or patrons of the corporation. A cooperative is intended to be community-based, giving those whom the entity serves or employs a direct say in the operation of the entity. You might be familiar with cooperative corporations in the form of local food cooperatives or credit unions, in which control of the cooperative is vested in the patrons of the organization; however, many states allow for the formation of other kinds of cooperatives as well, including journalism cooperatives.

    Although the manner in which cooperatives function can vary from state to state (see State Law: Forming a Cooperative Corporation), most states seek to enhance the community-based nature of cooperatives by limiting the power that individual stakeholders can wield in the cooperative. In general, no matter how large an individual's ownership stake in the cooperative might be, each stakeholder is entitled to no more than a single vote in the operation of the cooperative. This helps to ensure that no single voice in a community dominates the operation of the cooperative.

    Like other forms of corporation, operating as a corporation offers limited liability to shareholders, transferability of ownership interests (shares), and perpetual existence of the corporation, even after original shareholders have left the business. Some states (alternatively or additionally) allow for the creation of non-profit cooperatives, which generally follow cooperative rules with respect to control of the organization by members of the cooperative, and the rules for non-profit corporations with respect to other issues.

    Forming as a cooperative can also provide significant tax benefits over other forms of corporation. For-profit cooperatives that distribute their profits to their patrons as a special "patronage dividend" (which is similar to a refund) will not be taxed on those profits at the federal level so long as the distributions follow specific statutory rules. This can reduce or eliminate the "double taxation" issue faced by regular corporations. Non-profit cooperatives will by default be treated the same way, but, like other non-profit corporations, might be able to apply for an exemption from federal taxation under Section 501(c)(3) of the Internal Revenue Code. However, the rules governing taxation of cooperatives can be complex, and you will likely require the assistance of a tax professional to take maximum advantage of these benefits.

    In determining whether you want to operate as a cooperative corporation, you may want to consider the following factors:

    • Liability: Shareholders of a cooperative enjoy limited liability for the debts and obligations of the business, including liability for the unlawful acts of other shareholders and employees. For instance, if a fellow shareholder writes a defamatory article or posts copyright infringing material on your jointly-run website or blog, then your liability ordinarily is limited to amounts invested in the cooperative. The same goes for a defamatory article or infringing post published by an employee on the cooperative's website. However, limited liability does not relieve you from personal liability for your own unlawful actions.

    Cooperatives, like other forms of legal entity, are subject to the legal doctrine known as "piercing the corporate veil," which can result in shareholders losing limited liability protection in extremely rare circumstances.

    If you apply for a small business loan, the lender probably will require you to give a personal guarantee. In that case, you are personally responsible for the paying back the debt, even if the business is a cooperative and even if there is no basis for piercing the corporate veil.

    • Formation: Forming a cooperative is moderately complex in terms of burden and cost. In general, the specific steps will depend on whether you are forming a for-profit cooperative, in which case the steps will resemble those for forming a corporation, or a non-profit cooperative, in which case the steps will resemble those for forming a non-profit corporation. In addition to the normal steps required to form a corporation, forming a cooperative will likely require you to decide up front when and on what basis to distribute profits in the form of patronage dividends. This will require an understanding of the tax consequences of these decisions. Some states may impose additional steps or requirements.
    • Management Structure: As with formation, the management structure of a cooperative depends on whether it is a for-profit cooperative (with shareholders, as in a corporation) or a non-profit cooperative (with members, as in a non-profit corporation), generally tracking the management structures of regular for-profit and non-profit corporations. The primary difference between a cooperative and a corporation is that each shareholder or member in a cooperative is entitled to no more than a single vote, regardless of the stake that an individual holds in the cooperative. Some states might allow for the existence of non-voting members or shareholders. Apart from this even distribution of voting power, shareholders or members in a cooperative generally vote on the same type of issues as their counterparts in regular corporations, while the day-to-day affairs of the cooperative are handled by a board of directors and the officers and employees of the cooperative.
    • Operation: Operating a cooperative is moderately burdensome and costly, somewhat more so than other corporate forms. State corporate laws provide for cumbersome formalities governing things like the election and removal of directors, filling vacancies on the board, holding board and shareholder meetings, keeping minutes of those meetings, recording board resolutions, and shareholder approval of major management decisions. Additionally, state laws impose record-keeping requirements, as well as annual or biennial reporting requirements (and fees), all of which tend to drive up the cost of operating as a corporation. For details on annual/biennial reporting requirements and fees, see the State Law: Forming a Cooperative Corporation section. This is all in addition to the tax and other regulatory obligations imposed on all small businesses.

    If you contemplate issuing shares to more than ten people, or to people not actively involved in the business, you should consult an attorney regarding potential securities laws obligations.

    • Ownership of Assets/Distribution of Profits: The cooperative owns the assets of the business, and shareholders/members have no direct financial interest in them. In a for-profit cooperative, shareholders own the business itself, but their direct financial interest is in the shares of stock that they own. Shares entitle their holder to a portion of corporate profits, distributed by the company in the form of stock dividends. The percentage of profits received as a stock dividend by a particular shareholder depends upon that shareholder's proportion of share ownership. Thus, if you own 50% of the outstanding stock in the cooperative, you would be entitled to receive 50% of the stock dividends if and when the cooperative makes a distribution.
    Cooperatives do not have to distribute stock dividends every year; rather, the board of directors decides whether to distribute them or to invest proceeds back into the business. Cooperatives that issue stock dividends will be "double taxed" on the amount of the dividends at both the corporate and personal levels.
    In this respect, stock dividends are different from "patronage dividends," another type of distribution that a cooperative can make. In general, a "patronage dividend" consists of a refund to the patrons of a business proportional to the amount that each patron has paid to the cooperative during a given year. Although a cooperative can limit the patrons that receive "patronage dividends" to people who are also shareholders or members, they are generally not required to do so. Unlike stock dividends, a cooperative may deduct the amount of any patronage dividends from its gross income before calculating its taxable income.
    Shareholders also can sell their shares, unless there is a restriction on transfer imposed in the articles of incorporation or a shareholders' agreement.
    Among the most important assets of any business that operates a website or blog are its articles, posts, videos, and other content. For details on who owns what from a copyright perspective, see the Copyright Ownership of Articles and Posts section.
    • Tax Treatment: One of the major (at least perceived) disadvantages of operating as a corporation (including a cooperative corporation) is "double taxation." The profits of journalism cooperatives can be taxed twice -- once at the corporate level (at the applicable state and federal corporate income tax rates), and again on the individual level when profits are distributed to shareholders as stock dividends (at the applicable individual income tax rate - under current law, stock dividends paid by corporations generally are subject to tax at the same rate as capital gains or 15%). However, unlike other corporations, cooperatives can avoid double taxation by distributing profits as a "patronage dividend" as opposed to a stock dividend. As discussed above, a cooperative may deduct the amount of any patronage dividends from its gross income before calculating its taxable income; this means that only the individual patrons receiving the patronage dividend might be taxed on those amounts. Any profits not distributed as a patronage dividend will be taxed at the applicable corporate rate, and then taxed again at the individual level if distributed as a stock dividend.
    For some cooperatives, paying reasonable salaries to shareholders who participate in running the business can also help ameliorate the potential burdens of double taxation. Shareholders of a cooperative cannot deduct business losses to offset income from other sources. Also, cooperatives are generally taxed at a relatively high rate (currently about 34% or 35%) on earned income, which may be higher than applicable individual rates.
    • Other Considerations:
    Cooperatives are ideally suited to responding to situations where market forces in a given industry have failed to serve a particular community. In the journalism context, such a situation might be a "news desert" in which local coverage is not available from traditional news outlets. A cooperative allows a community in such a situation to come together and raise funds to provide necessary goods or services that are not otherwise available. The one-person/one-vote system of control by shareholders (or members in the case of a non-profit cooperative) helps to ensure that all participating people in the community feel that they have an equal voice in the cooperative.
    On the other hand, the fact that shareholders in a cooperative are limited to a single vote regardless of the number of shares held might discourage institutional investors, who usually seek significant control over a corporation in return for their investment. Similarly, the fact that cooperatives will normally issue patronage dividends to dispose of their profits, as opposed to stock dividends, might make a cooperative a less attractive investment vehicle. This can limit the growth of a cooperative beyond the means of a particular community.
    However, this corporate form offers full transferability of shares, which can make it easier for a company to raise capital from outside investors, and it also makes it somewhat easier for individual shareholders to "get out" of the business by selling their shares to other shareholders or outsiders. If you are interested in operating a small business with others that you know and trust, the free transferability of shares may be a disadvantage to adopting the corporate form.
    If you want your cooperative to "do business" in states other than the one in which it is incorporated, you need to register as a "foreign" corporation doing business in the other states. You do not need to do this simply because your website or content reaches the residents of other states. It might be an issue, however, if one of the officers or employees of the cooperative works (i.e., contributes content to the website or blog) from another state, and it would likely be required if your cooperative has an office there. State procedures for obtaining this registration vary, but commonly there is a specific form that you need to complete, and you will need to submit copies of the articles of incorporation and a certificate of good standing from your state. There will also be a registration fee. To get the process started, you should visit the Secretary of State's website for the state in which you want to register.
    • Additional Resources: A number of organizations exist to support cooperative corporations in various sectors, including:

    Banyan Project (introducing reader-owned community news cooperatives to the United States to help counteract news deserts, distrust of media, and widespread misinformation)

    National Cooperative Business Association (the nation’s oldest and largest national membership association, representing cooperatives of all types and in all industries)

    University of Wisconsin Center for Cooperatives (university-based research project focused on a research, educational, and outreach agenda that examines cooperative issues across multiple business and social sectors)

    CooperationWorks (national cooperative created to grow the cooperative model across the United States)

     

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    Taxation of Cooperatives and "Patronage Dividends"

    For-profit cooperative corporations are given special treatment with respect to federal taxation. Although they are generally taxed as normal corporations, they can reduce their tax exposure by issuing what are known as “patronage dividends” to patrons of the cooperative.

    A “patronage dividend” is essentially a refund issued to those who purchase goods or services from a cooperative, and is calculated based upon the amount that each patron spends at the cooperative in a given taxable year. 26 U.S.C. § 1388(a). When filing its federal tax returns, a cooperative may deduct the amount of the patronage dividends that it issues in a particular tax year from its gross income in that year. 26 U.S.C. § 1382(b). As a result, this income is not taxed at the corporate level. Certain patronage dividends may also be deducted on the personal tax returns of the patrons who receive them. 26 U.S.C. § 1385(b).

    “Patronage dividends” are distinct from the more familiar “stock dividends” that a corporation pays to its shareholders in an amount proportional to their respective ownership of the corporation. Although a for-profit journalism cooperative usually can have shareholders and can issue stock dividends to them, there is no federal tax deduction at either the corporate or individual level for stock dividends. 26 U.S.C. § 1388(a). Thus, it is infrequent that a cooperative will issue stock dividends as opposed to patronage dividends.

    For that reason, purchase of shares in a cooperative is usually less a personal investment strategy and more an investment in the community. This is emphasized by the fact that, under most state cooperative laws, shareholders in a cooperative receive only a single vote in the management of the business regardless of the number of shares they own.

    In order to qualify for the federal tax deduction, patronage dividends must, under 26 U.S.C. § 1388(a), meet the following two criteria:

    • Each patronage dividend must be calculated based upon the basis of the quantity or value of business done by the cooperative with or for each patron, with reference to the net earnings of the organization from business done with or for its patrons.

    o       In order to be deductible by the cooperative, the amount that a particular patron receives as a patronage dividend must reflect the relative contribution of that patron to the net earnings of the cooperative from “business done with or for its patrons.” In many circumstances, the patronage dividend is calculated as a percentage of each patron’s individual purchases made during the tax year, but other calculations may be possible.

    o       Qualifying patronage dividends cannot be paid out of earnings or income other than from “business done with or for its patrons.” Therefore, a patronage dividend will generally not be tax-deductible if it is made out of the capital contributions of shareholders, donations to the cooperative, or sources of revenue other than business with or for the cooperative’s patrons.

    o       However, if a cooperative earns income through secondary activities that are integrally intertwined with its ordinary functions and are commercially reasonable, those activities might constitute business “for” or on behalf of its patrons and the income might be available for distribution as a patronage dividend. See Cotter & Co. v. U.S., 765 F.2d 1102 (Fed. Cir. 1985) (rental income from lease of warehouse space and interest income from commercial paper and certificates of deposit held to have resulted from business conducted on behalf of patrons).

    o       Identifying income that can be distributed as a patronage dividend and calculating those dividends in a manner that qualifies for the federal tax deduction can be very complex, and you are advised to seek the assistance of a tax attorney or other tax professional when determining how to calculate the amount that each patron receives.

    • The cooperative must have obligated itself to issue a patronage dividend before the cooperative receives the income out of which it pays the dividend.

    o       A cooperative cannot use a patronage dividend to reduce its tax exposure on income earned prior to deciding to issue the dividend. Thus, a cooperative cannot wait to decide to issue a patronage dividend until after it sees how much it has earned for the year.

    o       Usually, this issue can be avoided by building the obligation to pay patronage dividends into the bylaws or articles of incorporation of the cooperative during its formation.

    In general, cooperatives are not required (by federal law, at least) to issue patronage dividends to all patrons, and can define classes of patrons who receive more or less than one another, or nothing at all. These classes can be based on purchase of a “membership,” residency in a particular geographic area, or other criteria (so long as the criteria do not violate anti-discrimination laws). Some cooperatives only issue patronage dividends to patrons who are also shareholders; thus, a capital investment in the cooperative might be a prerequisite to receipt of a patronage-based refund. 

    However, if you create different classes of patrons that receive different patronage dividends, it will limit the amount of distributed income that can be deducted by the cooperative. The cooperative may not deduct from its income any dividend paid to a patron out of income earned from other patrons who receive a smaller refund or no refund.  26 U.S.C. § 1388(a). In other words, if a cooperative earns 5% of its net business income from patrons who are eligible to receive a patronage dividend and 95% from other patrons that are ineligible, the cooperative can distribute a maximum of 5% of its net income as a qualifying patronage dividend and must pay taxes on the remaining 95% (regardless of what the cooperative does with that other 95%). This rule prevents a cooperative from using patronage dividends to funnel all of its profits to a select class of individuals while simultaneously claiming a tax benefit.

    The federal Internal Revenue Code also contains provisions allowing cooperatives to issue "qualified written notices of allocation"  (such as shares of stock, certificates of indebtedness, or other redeemable notes) as patronage dividends in lieu of cash. 26 U.S.C. § 1382(b).  These provisions are complex, and may require advance consent from the patron receiving such alternative compensation. Again, determining how to fulfill the cooperative’s obligation to issue patronage dividends can be very complex, and you are advised to seek the assistance of a tax attorney or other tax professional when making these decisions.

    Note that state (as opposed to federal) taxation of cooperatives varies from state to state. You are advised to contact the Department of Revenue in the state where you are considering forming a cooperative to determine how taxes are handled there.

    Note: The information contained on this page is meant for general, information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

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    Low-Profit Limited Liability Company

    The Low-Profit Limited Liability Company (L3C) is a hybrid business form, combining a socially beneficial mission with a for-profit business entity. First established in Vermont in 2008, L3Cs can now also be formed in Illinois, Michigan, Utah, Wyoming, and North Carolina. Maine has also passed legislation authorizing L3Cs (2009 Maine House Paper No. 1118), which does not become effective until July 1, 2011. L3Cs can be operated for a range of purposes including religious, educational, scientific, or literary ones. Currently, there are over 100 Vermont L3Cs , including news organizations like Point Reyes Light.

    Given the newspaper industry's financial difficulties and the social significance of news reporting and analysis, many journalism start ups are considering the L3C business form. Proponents argue that the L3C offers journalism ventures a sustainable business model with the potential to save newspapers. Yet, there are serious limitations to the L3C, including a capital structure largely dependent on an uncommon type of private foundation investment. For more information on whether forming an L3C is right for your project, see the Should You Form an L3C? section of this Guide.

    L3C Business Form Basics

    The L3C is a variation on the Limited Liability Company designed to take advantage of both non-profit and for-profit sources of capital. As the term "Low-Profit" suggests, an L3C typically engages in socially-beneficial activities which may not be lucrative enough to attract sufficient commercial investment. By using a tiered capital structure, the L3C can potentially attract a diverse group of creditors to finance its operations, including private foundations and socially-conscious for-profit entities.

    In addition to the financing benefits, an L3C may offer a marketing advantage over the standard LLC in attracting socially-conscious investors and consumers. In contrast to a standard LLC, which can be organized for any lawful business purpose, an L3C must operate to significantly further a charitable goal as required by IRS Regs. Sec. 53.4944-3(a) . Still, any LLC can function exactly like an L3C if its articles of organization and operating agreement are drafted to track the provisions of Regs. Sec. 53.4944-3(a).

    Tax Treatment of the L3C

    Despite its socially-conscious mission, an L3C is not a tax-exempt organization under Section 501(c) of the Internal Revenue Code, and donations and investments in L3Cs are not tax deductible. Since the profits of an L3C "pass through" to its members and are taxed at individual rates, L3Cs operate like standard LLCs for federal tax purposes.

    The L3C's primary advantage is its ability to attract private foundation Program-Related Investments (PRIs) though its formal compliance with the PRI requirements set out in Regs. Sec. 53.4944-3(a). PRIs are a means for private foundations to invest in for-profit entities without incurring certain penalty taxes. State laws authorizing L3Cs require their organizing documents to track the provisions of Regs. Sec. 53.4944-3(a).

    As a cautionary note, however, the IRS has not ruled whether private foundation investments in L3Cs qualify as PRIs. State laws authorizing L3Cs do not bind the federal tax authorities regarding PRIs, which may limit the utility of the business form until the IRS makes its determination.

    We also have a PDF version of our "Primer on Low-Profit Limited Liability Companies" that you can download here. 

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    Capital Structure of the L3C

    Like the standard LLC, the L3C has a flexible ownership structure. Membership interests in an L3C are governed by rules set out in the L3C's articles of organization and operating agreement.

    An L3C can create a tiered capital structure, allocating risk and returns differently across different types of members. In an L3C, Program Related Investments (PRIs) by private foundations can be allocated the highest risk and lowest rates of return. Thus, the investing foundations are essentially subsidizing returns on commercial investment. In exchange, private foundations may retain decision-making powers in the L3C in order to ensure that the investment qualifies as a PRI.

    Private socially responsible investors may be willing to accept below-market returns from a venture with charitable goals. In an L3C, these investors may assume less risk and receive a higher share of profits than private foundations, but in general they may also have fewer management powers.

    Private commercial investors seeking market-rate returns may be allocated the highest returns and lowest risk in an L3C. Such investors may include pension funds, banks, insurance companies, or endowments.

    Whether or not the L3C's tiered capital structure imposes excessive risk on private foundations remains an open question. If the IRS determines a private foundation's investment in an L3C to be a jeopardy investment, the foundation is subject to significant penalty taxes. Even if the investment qualifies as a PRI, the foundation must still ensure that its charitable goals are accomplished and guard against private inurement. If any part of the foundation's net earnings accrue to the benefit of a private individual, such as a commercial investor in the L3C, the foundation will lose its tax exemption. To minimize these risks, a private foundation may require approval authority on L3C investments, regular reports and other controls.

    Should You Form an L3C?

    In determining whether the L3C is the right business form for your venture, you may want to consider the following factors:

    Advantages

    • L3Cs are designed to take advantage of Program Related Investments (PRIs) by private foundations and could allow a venture to tap into new sources of capital.
    • The L3C's tiered capital structure could guarantee market-rate returns to senior-tier members and may attract more commercial investors than a traditional LLC would.
    • The L3C may be an attractive option for entities with a clear business plan identifying committed private foundation investors whose charitable purpose is consistent with the L3C's social objectives. 
    • The L3C brand communicates the media entity's commitment to a social goal and may serve as a marketing tool for attracting nonprofit and socially-conscious for-profit investors as well as consumers.

    Disadvantages

    • An L3C may not be organized for political or legislative purposes. This restriction may be limiting to the types of publishing in which an online media L3C may engage.
    • PRIs are not common among private foundations and securing them may be difficult. A survey of over 72,000 private foundations shows that PRIs of $10,000 or more accounted for less than 1% of private foundations' qualifying distributions in 2006 and 2007. 
    • To qualify for PRIs, an L3C must further the investing private foundation's charitable goals. For online media ventures, this narrows down the pool of potential private foundation investors to those whose missions can be accomplished through online publications. The "mission furtherance" requirement may also limit the kinds of materials and online media L3C can publish to those that conform with and further the private foundations' goals.
    • Even if a private foundation agrees to invest in an L3C, there is a significant risk the investment will be considered a jeopardy investment and subject the foundation to federal penalty taxes. So long as state laws authorizing L3Cs do not bind the IRS on the PRI issue, there is no federal tax benefit to forming an L3C as opposed to an LLC. Private foundation managers must be equally cautious when investing in L3Cs and LLCs. In general, this means seeking either the written opinion of counsel or a private letter ruling by the IRS, both of which are costly.
    • Given the challenges of securing investments from private foundations, the efforts necessary to provide market-rate returns on commercial investments in the L3C could be significant. This could compromise an L3C's commitment to keep profit-making a secondary concern, which could make it even more difficult to obtain investments from private foundations.
    • Private foundation investors will require management rights in an L3C in order to ensure that their charitable purposes are accomplished and guard against private inurement. If any part of the foundation's net earnings accrue to the benefit of a private individual, the foundation will loose its tax exemption.
    • Compared to a non-profit, an L3C may make it more difficult for a venture to receive donations since such contributions will not be tax deductible.

    Program-Related Investments

    Nonprofit organizations are either public charities or private foundations. Typically, public charities receive broad public support in the form of donations, grants, or funds from the government. Unlike public charities, private foundations are funded by a limited number of private sources. To prevent them from improperly advancing private interests while taking advantage of the tax exemptions for nonprofits, the IRS imposes additional regulations on private foundations.

    Section 4943(a) of the Internal Revenue Code prevents private foundations from investing in joint ventures by imposing an initial 10 percent excise tax on the value of excess business holdings. In addition, Section 4942 requires a private foundation to disburse a certain amount of its assets annually and imposes penalty taxes for a failure to do so. Most importantly, Section 4944 imposes penalty taxes on jeopardy investments.

    Jeopardy Investments

    Jeopardy investments are defined as investments that risk a private foundation's ability to carry out its charitable purpose. In general, this means that the investment risks the foundation's resources in an imprudent way. To determine whether an investment is a jeopardy investment, the IRS engages in a case-by-case fact-intensive examination of the information available to foundation managers at the time the decision to invest was made. As a result, it is difficult for a private foundation to know with certainty whether or not it is making a jeopardy investment at the time of the investment. Since an L3C's tiered capital structure requires that private foundations assume a high risk at low rates of return, private foundation investments in L3Cs are likely to be considered jeopardy investments, unless they qualify for an exception as Program Related Investments.

    A determination that an investment is a jeopardy investment has severe consequences for the investor. Private foundations must pay an initial tax of 5 percent of the value of such investments for every taxable year from the point when the investment was made up until the tax is assessed or the investment is corrected. If the investment is not removed from jeopardy within the taxable period following the assessment of the initial tax, the foundation must pay an additional tax of 25 percent. Furthermore, a foundation manager who made a jeopardy investment knowingly and willfully must pay a 5 percent penalty tax, unless her behavior was due to reasonable cause. If the manager refuses to remove the investment from jeopardy after the initial tax is assessed, she must pay an additional 5 percent. The manager is personally liable for these taxes and may not pass them on to the foundation.

    Exception for Program-Related Investments

    The Internal Revenue Code provides a narrow exemption from jeopardy investment penalty taxes for a private foundation's Program-Related Investments (PRIs). PRIs may involve high risk and low returns, but the IRS does not treat them as jeopardy investments because they further the investing foundation's charitable goals. PRIs may take the form of below-market-rate loans, loan guarantees, linked deposits, or equity investments.

    The test to qualify as a PRI set out in Regs. Sec. 53.4944-3(a) requires that:

    (1) the primary purpose of the investment must be to accomplish a charitable purpose;

    (2) producing income cannot be a significant purpose of the investment; and

    (3) the investment cannot be made for political or lobbying purposes.

    An investment in an L3C does not automatically qualify for the PRI exception. The IRS may retroactively declare the investment was not a PRI, and the foundation would have to pay the relevant penalty taxes for jeopardy investments.

    As a consequence, a private foundation's investment in an L3C exposes it to the risk of incurring penalty taxes. To reduce the uncertainty, the foundation may seek a written opinion from legal counsel that clearly explains why an investment qualifies as a PRI. Such an opinion may protect the foundation and its managers from incurring the initial penalty tax for jeopardy investments even if the IRS declares it to be incorrect. However, a lawyer's opinion may be costly to obtain and would only protect the foundation until the IRS makes an official determination of the nature of the investment. If the IRS declares the investment does not qualify as a PRI and the investment is not removed from jeopardy within the tax period following that determination, penalty taxes will be imposed on the foundation as well as its manager.

    A private foundation may also request that the IRS pre-approve its investment though a private letter ruling. Such requests may take up to eighteen months to process. In the mean time, the foundation may incur tens of thousands of dollars in filing and legal fees without any guarantee of positive results. Even if the investment is pre-approved as a PRI, the foundation would have obligations to monitor the recipient L3C's use of PRI funds and ensure that the foundation's charitable goals are attained, or it may still be liable for penalties.

    To determine whether it is making a PRI prior to investing in an L3C, a foundation would consider each of the following factors:

    (1) the investing foundation's own charitable mission;

    (2) the social goals of the recipient L3C;

    (3) whether the social goals the L3C seeks to accomplish further the foundation's charitable mission;

    (4) whether the governance and financial structure of the recipient L3C insure that the PRI requirements of Regs. Sec. 53.4944-3(a) will be met; and

    (5) the cost of obtaining a written opinion from legal counsel or a private letter ruling from the IRS.

    Tax Treatment of Program Related Investments

    Private foundations benefit when their investments in ventures like L3Cs are officially determined to be PRIs. Such investments qualify as a disbursement under Section 4942 of the Internal Revenue Code, which required private foundations to distribute a certain amount of their assets annually. The foundation may earn income from the PRI, for which it will have to pay no tax. Finally, if the private foundation receives its investment back, it will have more funds to distribute via PRIs and grants. A foundation must reinvest a PRI and any income from it within a year of receipt.

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    How to Start a Business

    There are many steps to starting a business. Each state has its own setof laws and requirements regarding the formation of business entities.The following links will take you to general and state-specificinformation about how to form a sole proprietorship, partnership, LLC, corporation, and nonprofit organization.

    • Becoming a Sole Proprietor:  You become a sole proprietor automatically when you go into business for yourself.  This section outlines general and state-specific steps you need to take to ensure that your sole proprietorship is in compliance with applicable laws.
    • Forming a Partnership:  This section outlines general and state-specific steps you need to take to form a partnership in compliance with applicable laws.
    • Forming an LLC:  This section outlines general and state-specific steps you need to take to form an LLC in compliance with applicable laws.
    • Forming an L3C: This section outlines general and state-specific steps you need to take to form an L3C in compliance with applicable laws.
    • Forming a Cooperative Corporation: This section outlines general and state-specific steps you need to take to form a cooperative corporation in compliance with applicable laws.
    • Forming a Corporation:  This section outlines general and state-specific steps you need to take to form a corporation in compliance with applicable laws.
    • Forming a Nonprofit Corporation:  This section outlines general and state-specific steps you need to take to form a corporation in compliance with applicable laws.

    Jurisdiction: 

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    Becoming a Sole Proprietor

    You become a sole proprietor in a legal sense anytime you go into business for yourself. This page outlines the steps you need to take in order to make sure that your sole proprietorship is in compliance with applicable laws. Make sure to consult your state page for state-specific details.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register the name as a "fictitious" or "assumed" business name (sometimes also called a "trade name" or a "doing business as" filing). In most states, you do this at the local level by registering with the county clerk's office in the county where the business is located. In other states, you may have to register with the Secretary of State or another state agency in addition to registering at the local level. For more on the requirements of state law, see the state pages on forming a sole proprietorship. Fees and procedures may vary from location to location, so you should contact your county clerk's office for specifics.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    • As a business doing journalism, you are not required to obtain any federal or state licenses or permits relating to carrying on a particular trade. Most local or city governments, however, require every business to obtain a basic business license, sometimes called a tax registration certificate. You get this license from your city or county. The best way to get information about fees and procedures is to contact your county or city clerk's office or other local government authority. The local chamber of commerce and other small business owners might also be a good resource for information regarding local licenses and/or permits.

    4. Determine what tax obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employer Identification Number (EIN) from the IRS. There is no filing fee. You can apply for an EIN:
      • by submitting the required information online at the IRS's website. The EIN is issued immediately once the application information is validated;

      • by telephone at 1-800-829-4933 from 7:00 a.m. to 10:00 p.m. in your local time zone; or

      • by mailing or faxing Form SS-4, Application for Employer Identification Number. Instructions for Form SS-4 are available on the IRS website.
    • If you have an employee or employees, you likely will need to obtain a state employer identification number or account for tax purposes. You will also have to report any new hires as you make them. See the State Law: Forming a Sole Proprietorship section for details on state requirements.
    • As the owner of a small business, you are subject to additional federal and state taxes and informational filing requirements, such as self-employment taxes and employment withholdings and filings. Please see the Tax Obligations of Small Businesses section for details.

    5. Open a Bank Account for Your Business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN, a copy of your business name filing document, and your local business license, although you may not need any documentation if your business's name includes your surname. Here is an example of what banks may require.

    Jurisdiction: 

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    State Law: Becoming a Sole Proprietor

     

    Choose your state from the list below for state-specific information on becoming a sole proprietor:

    Becoming a Sole Proprietor in Arizona

    Here is an outline of the steps you should follow to get started as a sole proprietor in Arizona. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    • You are not legally required to register your business name with Arizona state authorities, but doing so is an accepted business practice. See the Office of the Secretary of State’s Tradename Registration Guidelines for more information on how to register your business name.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    2. Obtain any required local licenses.

    3. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you have an employee or employees to whom you page wages for services performed in Arizona, you must register complete the Joint Tax Application for employer withholding and unemployment insurance. You can do this via the Arizona Department of Revenue website (click on “License a New Business”), which you can also use to register for other business taxes (if applicable).
    • Whenever you hire an employee in Arizona, you must inform both the IRS and the State of Arizona. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Arizona New Hire Reporting website.
    • Arizona law requires employers in Arizona to use the “E-Verify” system (a free Web-based service offered by the federal Department of Homeland Security) to verify the employment authorization of all new employees hired after December 31, 2007. A.R.S. 23-214.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    4. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in California

    Here is an outline of the steps you should follow to get started as a sole proprietor in California. You should also read the general section for information that is applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need file a Fictitious Business Name Statement in the county in which your primary place of business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you will be paying at least $100 to employees in a quarter, you are subject to California employment taxes and must register for a California employer account number within 15 days of paying that $100. You can register for employment taxes and get an account number online using the Employment Development Department's website. You must pay these taxes quarterly. For more information on being an employer, including tax information, see the California Employer's Guide.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing or local business license, although you may not need any supporting documents if the sole proprietorship's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Florida

    Here is an outline of the steps you should follow to get started as a sole proprietor in Florida. You should also read the general section for information that is applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to apply for permission to use a "fictitious business name" with the Department of State. You can file a Fictitious Name Registration Form by mail, or you can submit it online. There is a $50 fee to file.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Florida, you must inform both the IRS and the State of Florida. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Florida New Hire Reporting Center.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Georgia

    Here is an outline of the steps you should follow to get started as a sole proprietor in Georgia. You should also read the general section for information that is applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register the name as a "fictitious" or "assumed" business name. In Georgia, you do this by registering with the Clerk of Superior Court of the county where your business is principally located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Georgia, you must inform both the IRS and the State of Georgia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Georgia New Hire Reporting Website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in Illinois

    Here is an outline of the steps you should follow to get started as a sole proprietor in Illinois. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register the name as a "fictitious" or "assumed" business name. In Illinois, you do this by applying for permission to use an "assumed name" with the county clerk's office in the county where your principal place of business will be located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Illinois, you must inform both the IRS and the State of Illinois. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. You can find information on what to do on the state level on the New Hire Reporting section of the Illinois Business Portal.
    • If you have one or more employees in Illinois, you must carry workers' compensation insurance. You may choose to obtain workers' compensation insurance for yourself, but you do not need to. (If you have a workers' compensation policy for your employees, you must contact your insurance company if you DO NOT want to be covered.)
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in Indiana

    Here is an outline of the steps you should follow to get started as a sole proprietor in Indiana. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register an "assumed business name" with the county recorder in the county of your primary place of business.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Indiana, you must inform both the IRS and the State of Indiana. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Indiana New Hire Reporting Center website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in Massachusetts

    Here is an outline of the steps you should follow to get started as a sole proprietor in Massachusetts. You should also read the general section for information that is applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to obtaini a "dba certificate" at the city or town hall in the area where the business will be located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Massachusetts New Hire Reporting Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in Michigan

    Here is an outline of the steps you should follow to get started as a sole proprietor in Michigan. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to file an "assumed name" form with the county clerk in the county (or counties) where you will do business.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Michigan, you must inform both the IRS and the State of Michigan. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Michigan New Hire Reporting Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

    Subject Area: 

    Becoming a Sole Proprietor in New Jersey

    Here is an outline of the steps you should follow to get started as a sole proprietor in New Jersey. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register your business name with the county clerk in the county in which your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • All new businesses must register with the New Jersey Division of Revenue using the Business Registration Application. Upon registering, you will receive the forms, returns, instructions, and other information needed to comply with New Jersey law.
    • Whenever you hire an employee in New Jersey, you must inform both the IRS and the State of New Jersey. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New Jersey New Hire Reporting Directory.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

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    Becoming a Sole Proprietor in New York

    Here is an outline of the steps you should follow to get started as a sole proprietor in New York. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to file that name with the county clerk of the county where your business is located. The specific form used to register your assumed name may vary slightly from county to county; contact the relevant county clerk to verify which form is used.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in New York, you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New York New Hire Home Page.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • If your business is located or does any business in New York City, you may be subject to the NYC Unincorporated Business Tax. This tax mainly applies if you have at least $75,000 in gross revenues or $35,000 in profits. For more information, see New York City Taxes.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in North Carolina

    Here is an outline of the steps you should follow to get started as a sole proprietor in North Carolina. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to apply for permission to use an "assumed business name" with the office of the register of deeds in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees in North Carolina, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you have an employee or employees, you need to register for NC employment taxes at any of the taxpayer service centers located throughout the state. The Department of Revenue has a directory of taxpayer service centers that will guide you to the most convenient location.
    • Whenever you hire an employee in North Carolina, you must inform both the IRS and the State of North Carolina. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the North Carolina New Hire Reporting website.
    • If you have three or more or employees in North Carolina other than yourself, you are required to carry workers' compensation insurance. The North Carolina Industrial Commission administers the program. Its website has a useful FAQ.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Ohio

    Here is an outline of the steps you should follow to get started as a sole proprietor in Ohio. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to file Form 534 with the Ohio Secretary of State. The filing fee is $50. On the same form, you may register your business name as a "trade name," which provides protection against other businesses using the name in Ohio. Additionally, you should check with your county or city clerk's office to see if there is a local fictitious name registration requirement.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you have an employee or employees in Ohio, you need to register for Ohio employment taxes using the Ohio Business Gateway.
    • Whenever you hire an employee in Ohio, you must inform both the IRS and the State of Ohio. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Ohio New Hire Reporting Center.
    • If you have an employee or employees in Ohio, you need to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities. The Ohio Bureau of Worker's Compensation administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Pennsylvania

    Here is an outline of the steps you should follow to get started as a sole proprietor in Pennsylvania. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • Pennsylvania also requires that you publish an advertisement in two newspapers in the county where your business is located, stating that you have filed or intend to file a fictitious business name registration application. The advertisement must contain the following information:
    • The fictitious name;
    • The address, including street and number, if any, of the principal office or place of business of the business to be carried on under or through the fictitious name;
    • The name and address, including street and number, if any, of the person filing the registration; and
    • A statement that an application for registration of a fictitious name is to be or was filed "under 54 Pa.C.S. (relating to names)."
    One of the newspapers must be a legal periodical or newspaper. If there is no legal periodical or newspaper published in the county, then two newspapers of general circulations are sufficient. If there is only one newspaper of general circulation in a county, advertisement in that newspaper is sufficient. The Department of State has a list of legal newspapers. Proof of satisfaction of the advertising requirement should not be submitted to the Department of State, but you should retain proof in your business records.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Whenever you hire an employee in Pennsylvania, you must inform both the IRS and the Commonwealth of Pennsylvania. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Pennsylvania New Hire Reporting website.
    • If you have an employee or employees in Pennsylvania, you are required to carry workers' compensation insurance. The Pennsylvania Department of Labor & Industry administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Texas

    Here is an outline of the steps you should follow to get started as a sole proprietor in Texas. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register it as an "assumed business name" with the county clerk in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you have an employee or employees in Texas, you are subject to Texas employment taxes. You can register online using the Texas Employer Portal. For more information on being an employer in Texas, request a copy of the Employer Handbook.
    • Whenever you hire an employee in Texas, you must inform both the IRS and the State of Texas. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Texas Employer Portal.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Virginia

    Here is an outline of the steps you should follow to get started as a sole proprietor in Virginia. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you will need to register the name with the Office of the Clerk of the Circuit Court in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • If you have an employee or employees in Virginia, you need to apply for a VEC (Virginia Employment Commission) account number. You can do this via the Online Services for Businesses website, which can also register you for other business taxes (if applicable).
    • Whenever you hire an employee in Virginia, you must inform both the IRS and the State of Virginia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Virginia New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in Washington

    Here is an outline of the steps you should follow to get started as a sole proprietor in Washington. You should also read the general section for information applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    • Consult Access Washington for information on how to check the availability of your desired business name in Washington.

    2. File a Business License Application with the Washington Department of Licensing.

    • Before filing out the Business License Application, get the Business Licensing Guide so that you will fill out the application correctly.
    • You can file the Business License Application by printing out the form and mailing it, applying online, or by visiting a business licensing office in person. The filing fee is $20, which is a processing fee of $15, plus $5 to register a trade name. If you filed formation papers with the Secretary of State, write the Unified Business Identifier (UBI) number that was given to you on your Business License Application.
    • The Business License Application lets you register a "trade name" for your business, which you will need to do if you will operate your sole proprietorship under a name other than your own name. In addition to this, consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.
    • The Business License Application also lets you create a state employment account, which you need to do if you will have an employee or employees in Washington. You should not set up an employment account unless you plan to employ someone in the next 90 days.
    • Check your local county or city clerk's office for any additional licensing requirements.

    3. Get an Employer Identification Number from the IRS.

    • If you have an employee or employees, you need to apply for an Employment Identification Number (EIN) from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.

    4. Report Any New Hires.

    • Whenever you hire an employee in Washington, you must inform both the IRS and the State of Washington. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Washington New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Becoming a Sole Proprietor in the District of Columbia

    Here is an outline of the steps you should follow to get started as a sole proprietor in the District of Columbia. You should also read the general section for information that is applicable in any state.

    1. Choose a business name for your sole proprietorship and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your sole proprietorship under a name that is different from your own name, then you need to apply for permission to use a "trade name". The cost to register a trade name is $50.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Obtain any required local licenses.

    • The District of Columbia issues what is known as a Basic Business License (BBL) to new local businesses. The Department of Consumer and Regulatory Affairs website has a helpful Basic Business License Information page, which includes an online interface to help you determine whether you need a BBL.

    4. Determine what tax and other regulatory obligations your sole proprietorship has, and take care of any necessary registrations.

    • If you have an employee or employees, you need to apply for an Employment Identification Number from the IRS. You can apply for an EIN online. You may apply for an EIN even if you have no employees. Doing so may make it easier to open a bank account and reduce your risk of identity theft. There is no filing fee.
    • Register for District of Columbia business taxes using the FR-500 Combined Business Tax Registration service. This service will tell you what taxes you will be responsible for (including income and employment taxes), guide you to what forms you will need to file, and tell you when they must be filed.
    • Whenever you hire an employee in the District of Columbia, you must inform both the IRS and the District of Columbia. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. Information on what to do on the District level will be detailed when you register for taxes using the FR-500 Combined Business Tax Registration service.

    5. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. The bank will probably require your Social Security Number or EIN and a copy of your business name filing, although you may not need any documentation if your business's name includes your surname. (Here is an example of what banks may require.)

    Jurisdiction: 

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    Forming a Partnership

    Here are the general steps you need to follow in order to form a partnership in compliance with applicable laws. Make sure to consult your state page for state-specific details.

    1. Choose a business name for the partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating a partnership under a business name that is different from the partners' names, then you will need to register the name as a "fictitious" or "assumed" business name (sometimes also called a "trade name" or a "doing business as" filing). In most states, you do this at the local level by registering with the county clerk's office in the county where the business is located. In other states, you may have to register with the Secretary of State or another state agency in addition to registering at the local level. For more on the requirements of state law, see the State Law: Forming a Partnership section. Fees and procedures may vary from location to location, so you should contact your county clerk's office for specifics.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Negotiate and execute a partnership agreement.

    • This step is not legally required, but it is highly advisable that partners execute a formal agreement. Please see the Partnership Agreements section for details.

    4. Obtain any required local licenses.

    • As a business doing journalism, you are not required to obtain any federal or state licenses or permits relating to carrying on a particular trade. Most local or city governments, however, require every business to obtain a basic business license, sometimes called a tax registration certificate. You get this license from your city or county. The best way to get information about fees and procedures is to contact your county or city clerk's office or other local government authority. The local chamber of commerce and other small business owners might also be a good resource for information regarding local licenses and/or permits.

    5. Determine what tax obligations the partnership has, and take care of any necessary registrations.

    • Partnerships need to apply for an Employer Identification Number (EIN) from the IRS. There is no filing fee. You can apply for an EIN:
      • by submitting the required information online at the IRS's website. The EIN is issued immediately once the application information is validated;
      • by telephone at 1-800-829-4933 from 7:00 a.m. to 10:00 p.m. in your local time zone; or
      • by mailing or faxing Form SS-4, Application for Employer Identification Number. Instructions for Form SS-4 are available on the IRS website.
    • If your partnership has an employee or employees (other than the partners), you likely will need to obtain a state employer identification number or account for tax purposes. You will also have to report any new hires as you make them. See the state pages on forming a partnership for details on state requirements.
    • You should be aware that, as the owner of a small business, you may be subject to additional federal, state and local taxes and informational filing requirements, such as self-employment taxes and employment withholdings and filings. Please see the Tax Obligations of Small Businesses section for details.
    • Although a partnership generally does not pay federal income tax at the entity level, it must file an information return, Form 1065, annually with the IRS. This return shows the partnership's income, deductions, and other required information, and must include the names and addresses of each partner, and each partner's distributive share of taxable income. For more information on the federal tax obligations of partnerships, see the IRS's page, Tax Information for Partnerships (includes links to forms and other resources).

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or your "fictitious" business name filing indicating the partners' names. Here is one example of the documentation banks ask for.

    Jurisdiction: 

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    State Law: Forming a Partnership

     

    Choose your state from the list below for state-specific information on forming a partnership:

    Forming a Partnership in Arizona

    Here is an outline of the steps you need to follow in order to form a partnership in Arizona. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    • If you are forming a limited partnership (i.e., a partnership made up of one or more general partners and one or more limited partners, whose liability for the debts of the partnership is limited), your partnership name must include the words “limited partnership” or the initials “l.p.” or “LP”, in upper or lower case, and may not include the name of any limited partner, unless certain exceptions apply. A.R.S. § 29-302.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to file a certificate stating in full the names of all members of the partnership and their place of residence, signed by the partners and acknowledged, with the county recorder in the county where your business is located. A.R.S. § 29-102.
    • A “statement of partnership authority” may be filed with the Office of the Secretary of State of Arizona. A.R.S. §§ 29-1001, -1005, -1023.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.
    • If you are forming a limited partnership, you must maintain an office in Arizona and designate an agent for service of process on the limited partnership. A.R.S. § 29-304. You must also keep certain records at your office described in A.R.S. § 29-305.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. A.R.S. 29-1003 places some limits on provisions the partnership agreement may include. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees to whom you page wages for services performed in Arizona, you must register complete the Joint Tax Application for employer withholding and unemployment insurance. You can do this via the Arizona Department of Revenue website (click on “License a New Business”), which you can also use to register for other business taxes (if applicable).
    • Whenever you hire an employee in Arizona, you must inform both the IRS and the State of Arizona. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information at the Arizona New Hire Reporting website.
    • Arizona law requires employers in Arizona to use the “E-Verify” system (a free Web-based service offered by the federal Department of Homeland Security) to verify the employment authorization of all new employees hired after December 31, 2007. A.R.S. 23-214.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

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    Forming a Partnership in California

    Here is an outline of the steps you need to follow in order to form a partnership in California. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to file a Fictitious Business Name Statement in the county in which your primary place of business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you will be paying at least $100 to an employee or employees (who are not partners) in a quarter, you are subject to employment taxes and must register for a California employer account number within 15 days of paying that $100. You can register for employment taxes and get an account number online using the Employment Development Department's website. You must pay these taxes quarterly. For more information on being an employer, including tax information, see the California Employer's Guide.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You probably will need a Tax ID number (EIN) and either a copy of the partnership agreement or the business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Florida

    Here is an outline of the steps you need to follow in order to form a partnership in Florida. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to apply for permission to use a "fictitious business name" with the Florida Department of State. You can file a Fictitious Name Registration Form by mail, or you can submit it online. There is a $50 fee to file.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Florida, you must inform both the IRS and the State of Florida. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Florida New Hire Reporting Center.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Georgia

    Here is an outline of the steps you need to follow in order to form a partnership in Georgia. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register the name as a "fictitious" or "assumed" business name. In Georgia, you do this by registering with the Clerk of Superior Court of the county where your business is principally located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Georgia, you must inform both the IRS and the State of Georgia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Georgia New Hire Reporting Website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Illinois

    Here is an outline of the steps you need to follow in order to form a partnership in Illinois. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register the name as a "fictitious" or "assumed" business name. In Illinois, you do this by applying for permission to use an "assumed name" with the county clerk's office in the county where your principal place of business will be located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Illinois, you must inform both the IRS and the State of Illinois. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. You can find information on what to do on the state level on the New Hire Reporting section of the Illinois Business Portal.
    • If you have one or more employees in Illinois, you must carry workers' compensation insurance. You may choose to obtain workers' compensation insurance for yourself, but you do not need to. (If you have a workers' compensation policy for your employees, you must contact your insurance company if you DO NOT want to be covered.)
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • Partnerships must pay property replacement tax at a rate of 1.5% of net income by filing this form annually.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Indiana

    Here is an outline of the steps you need to follow in order to form a partnership in Indiana. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register an "assumed business name" with the county recorder in the county of your primary place of business.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Indiana, you must inform both the IRS and the State of Indiana. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Indiana New Hire Reporting Center website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Massachusetts

    Here is an outline of the steps you need to follow in order to form a partnership in Massachusetts. You should also read the general section on forming a partnership for information that is applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to obtain a "dba certificate" at the city or town hall in the area where the business will be located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Massachusetts New Hire Reporting Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Michigan

    Here is an outline of the steps you need to follow in order to form a partnership in Michigan. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to file an assumed name form with the county clerk in the county (or counties) where you will be doing business.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Michigan, you must inform both the IRS and the State of Michigan. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Michigan New Hire Reporting Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in New Jersey

    Here is an outline of the steps you need to follow in order to form a partnership in New Jersey. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register the business name with the county clerk in the county in which your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • All new businesses must register with the New Jersey Division of Revenue using the Business Registration Application. Upon registering, you will receive the forms, returns, instructions, and other information needed to comply with New Jersey law.
    • Whenever you hire an employee in New Jersey, you must inform both the IRS and the State of New Jersey. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the New Jersey New Hire Reporting Directory.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in New York

    Here is an outline of the steps you need to follow in order to form a partnership in New York. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to file a Certificate of Assumed Name with the county clerk of the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in New York, you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New York New Hire Home Page.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • If your business is located or does any business in New York City, you may be subject to the NYC Unincorporated Business Tax. This tax mainly applies if you have at least $75,000 in gross revenues or $35,000 in profits. For more information, see New York City Taxes.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in North Carolina

    Here is an outline of the steps you need to follow in order to form a partnership in North Carolina. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to apply for permission to use an "assumed business name" with the office of the register of deeds in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have any employees in North Carolina (other than yourself and your partners), you need to register for NC employment taxes at any of the taxpayer service centers located throughout the state. The Department of Revenue has a directory of taxpayer service centers that will guide you to the most convenient location.
    • Whenever you hire an employee in North Carolina, you must inform both the IRS and the State of North Carolina. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the North Carolina New Hire Reporting website.
    • If you have three or more or employees other than you and your partners, you are required to carry workers' compensation insurance. The North Carolina Industrial Commission administers the program. Its website has a useful FAQ.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Ohio

    Here is an outline of the steps you need to follow in order to form a partnership in Ohio. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to file Form 534 with the Ohio Secretary of State. The filing fee is $50. On the same form, you may register your business name as a "trade name," which provides protection against other businesses using the name in Ohio. Additionally, you should check with your county or city clerk's office to see if there is a local fictitious name registration requirement.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have any employees in Ohio (other than yourself and your partners), you need to register for Ohio employment taxes using the Ohio Business Gateway.
    • Whenever you hire an employee in Ohio, you must inform both the IRS and the State of Ohio. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Ohio New Hire Reporting Center.
    • If you have an employee or employees in Ohio, you need to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities. The Ohio Bureau of Worker's Compensation administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Pennsylvania

    Here is an outline of the steps you need to follow in order to form a partnership in Pennsylvania. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • Pennsylvania also requires that you publish an advertisement in two newspapers in the county where your business is located, stating that you have filed or intend to file a fictitious business name registration application. The advertisement must contain the following information:
    • The fictitious name;
    • The address, including street and number, if any, of the principal office or place of business of the business to be carried on under or through the fictitious name;
    • The name and address, including street and number, if any, of the person filing the registration; and
    • A statement that an application for registration of a fictitious name is to be or was filed "under 54 Pa.C.S. (relating to names)."
    One of the newspapers must be a legal periodical or newspaper. If there is no legal periodical or newspaper published in the county, then two newspapers of general circulations are sufficient. If there is only one newspaper of general circulation in a county, advertisement in that newspaper is sufficient. The Department of State has a list of legal newspapers. Proof of satisfaction of the advertising requirement should not be submitted to the Department of State, but the partnership should retain proof in its business records.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Pennsylvania, you must inform both the IRS and the Commonwealth of Pennsylvania. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Pennsylvania New Hire Reporting website.
    • If you have an employee or employees in Pennsylvania, you are required to carry workers' compensation insurance. The Pennsylvania Department of Labor & Industry administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Texas

    Here is an outline of the steps you need to follow in order to form a partnership in Texas. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register it as an "assumed business name" with the county clerk in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Texas (other than yourself and your partners), you are subject to Texas employment taxes. You can register online using the Texas Employer Portal. For more information on being an employer in Texas, request a copy of the Employer Handbook.
    • Whenever you hire an employee in Texas, you must inform both the IRS and the State of Texas. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Texas Employer Portal.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Virginia

    Here is an outline of the steps you need to follow in order to form a partnership in Virginia. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register the name with the Office of the Clerk of the Circuit Court in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Virginia (other than yourself and your partners), you need to apply for a VEC (Virginia Employment Commission) account number. You can do this via the Online Services for Businesses website, which can also register you for other business taxes (if applicable).
    • Whenever you hire an employee in Virginia, you must inform both the IRS and the State of Virginia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information at the Virginia New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

    Jurisdiction: 

    Subject Area: 

    Forming a Partnership in Virginia

    Here is an outline of the steps you need to follow in order to form a partnership in Virginia. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to register the name with the Office of the Clerk of the Circuit Court in the county where your business is located.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Virginia (other than yourself and your partners), you need to apply for a VEC (Virginia Employment Commission) account number. You can do this via the Online Services for Businesses website, which can also register you for other business taxes (if applicable).
    • Whenever you hire an employee in Virginia, you must inform both the IRS and the State of Virginia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information at the Virginia New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

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    Forming a Partnership in Washington

    Here is an outline of the steps you need to follow in order to form a partnership in Washington. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    • Consult Access Washington for information on how to check the availability of your desired business name in Washington.

    2. File a Business License Application with the Washington Department of Licensing.

    • Before filing out the Business License Application, get the Business Licensing Guide so that you will fill out the application correctly.
    • You can file the Business License Application by printing out the form and mailing it, applying online, or by visiting a business licensing office in person. The filing fee is $20, which is a processing fee of $15, plus $5 to register a trade name. If you filed formation papers with the Secretary of State, write the Unified Business Identifier (UBI) number that was given to you on your Business License Application.
    • The Business License Application lets you register a "trade name" for your business, which you will need to do if you will operate your sole proprietorship under a name other than your own name. In addition to this, consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.
    • The Business License Application also lets you create a state employment account, which you need to do if you will have an employee or employees in Washington. You should not set up an employment account unless you plan to employ someone in the next 90 days.
    • Check your local county or city clerk's office for any additional licensing requirements.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Get an Employer Identification Number from the IRS.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.

    5. Report Any New Hires.

    • Whenever you hire an employee in Washington, you must inform both the IRS and the State of Washington. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Washington New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

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    Forming a Partnership in the District of Columbia

    Here is an outline of the steps you need to follow in order to form a partnership in the District of Columbia. You should also read the general section on forming a partnership for information applicable in any state.

    1. Choose a business name for your partnership and check for availability.

    2. Register the business name with local, state, and/or federal authorities.

    • If you will be operating your partnership under a name that is different from your name and that of your partners, then you will need to apply for permission to use a "trade name". The cost to register a trade name is $50.
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    3. Draft and sign a partnership agreement.

    • Although not legally required, it is strongly suggested that you and your partners sign a partnership agreement laying out the rights and responsibilities of the partners. For details, please see the Partnership Agreements section.

    4. Obtain any required local licenses.

    • The District of Columbia issues what is known as a Basic Business License (BBL) to new local businesses. The Department of Consumer and Regulatory Affairs website has a helpful Basic Business License Information page, which includes an online interface to help you determine whether you need a BBL.

    5. Determine what tax and other regulatory obligations your partnership has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Register for District of Columbia business taxes using the FR-500 Combined Business Tax Registration service. This service will tell you what taxes you will be responsible for (including income and employment taxes), guide you to what forms you will need to file, and tell you when they must be filed.
    • Whenever you hire an employee in the District of Columbia, you must inform both the IRS and the District of Columbia. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. Information on what to do on the District level will be detailed when you register for taxes using the FR-500 Combined Business Tax Registration service.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN) and either a copy of the partnership agreement or a business name filing indicating the partners' names. (Here is one example of the documentation banks ask for.)

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    Forming an LLC

    Here are the general steps you need to follow in order to form an LLC in compliance with applicable laws. Make sure to consult your state page for state-specific details.

    1. Choose a business name for the LLC and check for availability.

    • As a general matter the name must (a) not be the same as that of another LLC on file with the state; (b) contain the words "Limited Liability Company," "Limited Company," or an abbreviation like "LLC"; (c) not contain certain words prohibited by state law, such as "Bank," "Insurance," "Corporation," or "City."
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    2. Prepare and file articles of organization with the appropriate state office, usually the Secretary of State.

    • There is a filing fee, which generally ranges between $70 and $200 depending on the state, but certain states have higher fees (e.g., Illinois ($500), Massachusetts ($500), and Texas ($300)). See the state pages on forming an LLC for details on state filing fees.

    3. Negotiate and execute an operating agreement.

    • This step generally is not legally required, but it is highly advisable that the members of an LLC execute a formal operating agreement. Please see the Operating Agreement section for details.

    4. Obtain any required local licenses.

    • As a business doing journalism, you are not required to obtain any federal or state licenses or permits relating to carrying on a particular trade. Most local or city governments, however, require every business to obtain a basic business license, sometimes called a tax registration certificate. You get this license from your city or county. The best way to get information about fees and procedures is to contact your county or city clerk's office or other local government authority. The local chamber of commerce and other small business owners might also be a good resource for information regarding local licenses and/or permits.

    5. Determine what tax obligations the LLC has, and take care of any necessary registrations.

    • If you have any employees or more than one member, or you choose to have your single-member LLC taxed as a corporation, you need to apply for an Employer Identification Number (EIN) from the IRS. There is no filing fee. You can apply for an EIN:
    • by submitting the required information online at the IRS website. The EIN is issued immediately once the application information is validated;
    • by telephone at 1-800-829-4933 from 7:00 a.m. to 10:00 p.m. in your local time zone; or
    • If you have employees, the LLC likely will need to obtain a state employer identification number or account for tax purposes. You will also have to report any new hires as you make them. See the State Law: Forming an LLC section for details on state requirements.
    • You should be aware that, as the owner of a small business, you may be subject to additional federal, state and local taxes and informational filing requirements, such as self-employment taxes and employment withholdings and filings. Please see the Tax Obligations of Small Businesses section for details.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

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    State Law: Forming an LLC

     

    Choose your state from the list below for state-specific information on forming an LLC:

    Forming an LLC in Arizona

    Here is an outline of the steps you need to follow in order to form an LLC in Arizona. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Arizona law requires that an LLC name contain the words “limited liability company” or “limited company” or the abbreviations “L.L.C.”, “L.C.”, “LLC” or “LC”, in uppercase or lowercase letters. A.R.S. § 29-602(A)(1). The LLC name may not contain the words "association", "corporation" or "incorporated" or an abbreviation of these words. A.R.S. § 29-602(A)(2). Additionally, your business name must be distinguishable from the names of corporations, partnerships, or other entities created in the state or doing business in the state. A.R.S. § 29-602(B). Certain exceptions to this rule can be found in A.R.S. § 29-602(C).

    2. Prepare and file articles of organization with the Arizona Corporation Commission.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization (or the operating agreement). See A.R.S. § 29-681. For general information on articles of organization, see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Arizona does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. See A.R.S. § 29-682 for more detail on the topics an operating agreement may include. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees to whom you page wages for services performed in Arizona, you must register complete the Joint Tax Application for employer withholding and unemployment insurance. You can do this via the Arizona Department of Revenue website (click on “License a New Business”), which you can also use to register for other business taxes (if applicable).
    • Whenever you hire an employee in Arizona, you must inform both the IRS and the State of Arizona. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Arizona New Hire Reporting website.
    • Arizona law requires employers in Arizona to use the “E-Verify” system (a free Web-based service offered by the federal Department of Homeland Security) to verify the employment authorization of all new employees hired after December 31, 2007. A.R.S. 23-214.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • A.R.S. § 29-857 provides that, for Arizona income tax purposes, an LLC and its members shall be taxed as if the LLC is a partnership or a corporation, or is disregarded as an entity separate from its owner, as determined pursuant to the Internal Revenue Code. In other words, the federal tax classification of a limited liability company determines the entity's classification for Arizona tax purposes. See Arizona Corporate Tax Ruling CTR 97-2 (Aug. 8, 1997).

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Arizona
    • Arizona requires that LLCs maintain a known place of business and statutory agent in the state. A.R.S. § 29-604. Arizona also requires that certain documents to be kept at an LLC’s known place of business. A list of the required documents is located in A.R.S. § 29-607.

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    Forming an LLC in California

    Here is an outline of the steps you need to follow in order to form an LLC in California. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • California law requires an LLC name to contain either the words "limited liability company" or the abbreviation "LLC" or "L.L.C." as the last words in the name. The words "limited" and "company" may be abbreviated to "Ltd." and "Co." Additionally, your business name may not be the same as, or deceptively similar to, that of any other California LLC or any foreign LLC registered to do business in the state.

    2. Prepare and file articles of organization with the Secretary of State.

    3. Negotiate and execute an operating agreement.

    • California requires an operating agreement in order to form an LLC. See Cal. Corp. Code. § 17050(a). There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement section for details.

    4. File a Statement of Information with the Secretary of State.

    5. Obtain any required local licenses.

    6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you will be paying at least $100 to an employee or employees in a quarter (this does not include owners unless you have elected to have your LLC taxed as a corporation), you are subject to employment taxes and must register for a California employer account number within 15 days of paying that $100. You can register for employment taxes and get an account number online using the Employment Development Department's website. You must pay these taxes quarterly. For more information on being an employer, including tax information, see the California Employer's Guide.
    • California imposes an $800 minimum franchise tax on LLCs doing business in the state. This minimum tax is separate from any income, self-employment, or payroll tax. For details, see the California Franchise Tax Board's Limited Liability Company (LLC) page. For many, this $800 minimum tax could be a significant impediment to forming an LLC in California, especially if you have little or no expected income from your online publishing activities.

    7. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining an LLC in California

    • California requires certain documents to be kept at the LLC's principal place of business. A list of the required documents is located in Cal. Corp. Code § 17058.

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    Forming an LLC in Florida

    Here is an outline of the steps you need to follow in order to form an LLC in Florida. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Florida law requires an LLC name to contain the words "limited liability company," the abbreviation "L.L.C.," or the designation "LLC" as the last words of the name. Additionally, your business name must be distinguishable from other names on file with the Division of Corporations, and may not contain language stating or implying that the limited liability company is connected with a state or federal government agency or a corporation or other entity chartered under the laws of the United States.

    2. Prepare and file articles of organization with the Department of State, Division of Corporations.

    3. Negotiate and execute an operating agreement.

    • Florida does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement section for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Florida, you must inform both the IRS and the State of Florida. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Florida New Hire Reporting Center.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Florida
    • Florida requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Fla. Stat. ch. 608.4101.

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    Forming an LLC in Georgia

    Here is an outline of the steps you need to follow in order to form an LLC in Georgia. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Georgia law requires that an LLC name contain the words "limited liability company" or "limited company" (it is permitted to abbreviate the word "limited" as "ltd." and the word "company" as "co.") or the abbreviation "L.L.C.", "LLC", "L.C." or "LC".
    • Additionally, your business name must be distinguishable from other names on file with the state, and may not exceed 80 characters, including spaces and punctuation.

    2. Prepare and file articles of organization with the Secretary of State.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization. For general information on articles of organization, see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Georgia does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement section for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Georgia, you must inform both the IRS and the State of Georgia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Georgia New Hire Reporting Website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Georgia
    • Georgia requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Ga. Code Ann. § § 14-11-313 (link is to entire Georgia Code; click through to Title 14, Chapter 11, Article 3, and then locate the specific provision).

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    Forming an LLC in Illinois

    Here is an outline of the steps you need to follow in order to form an LLC in Illinois. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Illinois law requires that an LLC name contain the words "limited liability company," "L.L.C.," or "LLC." Additionally, your business name must be distinguishable from other names on file with the Secretary of State, and may not contain any of the following terms: "Corporation," "Corp.," "Incorporated," "Inc.," "Ltd.," "Co.," "Limited Partnership" or "L.P." Other more obscure limitations apply -- see 805 Ill. Comp. Stat. 180/1-10 (scroll down) for details.

    2. Prepare and file articles of organization with the Secretary of State.

    3. Negotiate and execute an operating agreement.

    • Illinois does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Illinois, you must inform both the IRS and the State of Illinois. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. You can find information on what to do on the state level on the New Hire Reporting section of the Illinois Business Portal.
    • If you have one or more employees in Illinois, you must carry workers' compensation insurance. You may choose to obtain workers' compensation insurance for yourself, but you do not need to. (If you have a workers' compensation policy for your employees, you must contact your insurance company if you DO NOT want to be covered.)
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Illinois
    • Illinois requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in 805 Ill. Comp. Stat. 180/1-40 (scroll down).

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    Forming an LLC in Indiana

    Here is an outline of the steps you need to follow in order to form an LLC in Indiana. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Indiana law requires that an LLC name contain the words "limited liability company," "L.L.C.," or "LLC." Additionally, your business name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply).

    2. Prepare and file articles of organization with the Secretary of State.

    3. Negotiate and execute an operating agreement.

    • Indiana does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement section for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Indiana, you must inform both the IRS and the State of Indiana. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Indiana New Hire Reporting Center website.
    • If you have employees in Indiana, you must carry workers' compensation insurance. You may choose to purchase it for yourself, but you do not have to do so.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Indiana

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    Forming an LLC in Massachusetts

    Here is an outline of the steps you need to follow in order to form an LLC in Massachusetts. You should also read the general section on forming an LLC for information applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Massachusetts law requires that an LLC name contain the words “limited liability company,” “limited company,” or the abbreviation “L.L.C.,” “L.C.,” “LLC,” or “LC”.
    • Your business name may not be the same as, or deceptively similar to, the name of any foreign or domestic limited partnership, corporation, or LLC on file with the Secretary of the Commonwealth.

    2. Prepare and file a certificate of organization with the Secretary of the Commonwealth.

    3. Negotiate and execute an operating agreement.

    • Massachusetts does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Massachusetts New Hire Reporting Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the certificate of organization, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Massachusetts
    • Massachusetts LLCs must file an Annual Report with the Secretary of the Commonwealth every year after the date of formation. The filing fee is $500, and you can file the form using the online filing system of the Secretary of the Commonwealth. There is no pre-printed form available, but according to the official guidelines the information required is the same as that included in the certificate of organization.
    • Massachusetts requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Mass. Gen. Laws ch. 156C, § 9.

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    Forming an LLC in Michigan

    Here is an outline of the steps you need to follow in order to form an LLC in Michigan. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Michigan law requires that an LLC name contain the words "limited liability company" or the abbreviation "L.L.C." or "L.C.," with or without periods or other punctuation. Additionally, your business name may not include the words "corporation" or "incorporated" or the abbreviation "corp." or "inc.," and must be distinguishable from other names on file with the state.

    2. Prepare and file articles of organization with the Department of Labor & Economic Growth, Bureau of Commercial Services, Corporation Division.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization (in Article V of the fill-in-the-blank form). For general information on articles of organization, see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Michigan does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Michigan, you must inform both the IRS and the State of Michigan. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Michigan New Hires Operating Center website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • As of January 1, 2008, a new business tax regime -- called the Michigan Business Tax -- takes effect in Michigan, and it applies to LLCs. Under the new law, qualifying small businesses in Michigan will pay a tax equal to 1.8% of adjusted business income. Probably all small online publishing businesses will qualify -- the law requires that officers/employees not be paid more than $160,000, gross receipts not exceed $18 million, and business income not exceed $1.3 million. For more information on the Michigan Business Tax, see the Michigan Business Tax FAQ on the Michigan Department of Treasury website.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Michigan
    • Michigan LLCs must file an Annual Statement with the Department of Labor & Economic Growth every year before February 15. The filing fee is $25, and you can file the form online via the FILEonline Service. If the LLC is formed after September 30 in a particular year, the Annual Statement is not required on the first February 15 following formation.
    • Michigan requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Mich. Comp. Laws § 450.4213.

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    Forming an LLC in New Jersey

    Here is an outline of the steps you need to follow in order to form an LLC in New Jersey. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • New Jersey law requires that an LLC name contain the words "Limited Liability Company" or the abbreviation "L.L.C." Additionally, your business name must be distinguishable from other names on file with the state.
    • For information about checking the availability of your desired business name in New Jersey, see the Check Business Name Availability page on the Division of Revenue's website.

    2. Prepare and file a certificate of formation with the Division of Revenue.

    3. Negotiate and execute an operating agreement.

    • New Jersey does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • All new businesses must register with the Division of Revenue using the Business Registration Application. Upon registering, you will receive the forms, returns, instructions, and other information needed to comply with New Jersey law.
    • Whenever you hire an employee in New Jersey, you must inform both the IRS and the State of New Jersey. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New Jersey New Hire Reporting Directory.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • New Jersey also imposes $150 per member annual fee on LLCs that have income from New Jersey sources. The fee is paid when filing Form NJ-1065, which is the New Jersey partnership tax return. For details, see the NJ Business Portal page Taking Care of Business: Partnerships.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the certificate of formation, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in New Jersey

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    Forming an LLC in New York

    Here is an outline of the steps you need to follow in order to form an LLC in New York. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • New York law requires that an LLC name contain the words "Limited Liability Company" or the abbreviation "L.L.C." or "LLC". Additionally, your business name must be distinguishable from other names on file with the Department of State. There are a large number of words that cannot be included in the name without prior approval. For a full list, see N.Y. Ltd. Liab. Co. Law § 204.
    • You can search for the availability of your proposed name by writing to the Department of State, Division of Corporations, 41 State Street, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a corporate name (or names) and list the name (or names) to be searched. There is a $5 fee for each name, which must accompany the request. Searching the availability of a corporate name does not reserve the name. You may also search the New York Corporation and Business Entity Database to help you identify names that have already been taken, but this database might not be complete.

    2. Prepare and file articles of organization with the Department of State.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization. For general information on articles of organization, see the Articles of Organization page.

    3. Publish a notice of LLC formation and file a Certificate of Publication.

    • Publish a notice of formation for six consecutive weeks in a newspaper assigned to you by your county recorder's office. The State of New York website has a directory of New York county web sites, which you can reference to find the recorder for the county in which you will be doing business. Once this step is completed, you must file a Certificate of Publication form with the Department of State. There is a $50 filing fee.

    4. Negotiate and execute an operating agreement.

    • New York requires an operating agreement in order to form an LLC. It may be entered into before, at the time of, or within 90 days after filing articles of organization. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    5. Obtain any required local licenses.

    6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in New York, you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New York New Hire Home Page.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • The State of New York does not collect a corporate income tax from limited liability companies, but does require an annual filing fee from multi-member LLCs who are treated as partnerships for tax purposes and single-member LLCs that are treated as disregarded entities. If a single-member LLC is disregarded and its member is an individual, the LLC must pay a $25 filing fee, regardless of New York income. If a single-member LLC is disregarded and its member is a corporation, the LLC will be considered a part of the corporation for NY corporate franchise tax purposes. For multi-member LLCs treated as partnerships, the filing fee depends on the LLC's New York source gross income. LLCs must pay the fee and submit Form IT-204-LL (Instructions) within thirty days of the end of the LLC's tax year.

    7. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in New York
    • New York requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in N.Y. Ltd. Liab. Co. Law § 1102 (link is to entire code, you need to click on the LLC section, then choose Article 11 and locate the specific provision).

    Jurisdiction: 

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    Forming an LLC in North Carolina

    Here is an outline of the steps you need to follow in order to form an LLC in North Carolina. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • North Carolina law requires that an LLC name contain the words "limited liability company" or the abbreviation "L.L.C." or "LLC," or the combination "ltd. liability co.," "limited liability co.," or "ltd. liability company."

    2. Prepare and file articles of organization with the Secretary of State.

    3. Negotiate and execute an operating agreement.

    • North Carolina does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees, you need to register for NC employment taxes at any of the taxpayer service centers located throughout the state. The Department of Revenue has a directory of taxpayer service centers that will guide you to the most convenient location.
    • Whenever you hire an employee in North Carolina, you must inform both the IRS and the State of North Carolina. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the North Carolina New Hire Reporting website.
    • If you have three or more or employees other than you and your fellow LLC members, you are required to carry workers' compensation insurance. The North Carolina Industrial Commission administers the program. Its website has a useful FAQ.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in North Carolina
    • North Carolina LLCs must file an annual report with the Secretary of State every year after the date of formation. The filing fee is $200. You fill out the form online at the Online Annual Report Editor page.

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    Forming an LLC in Ohio

    Here is an outline of the steps you need to follow in order to form an LLC in Ohio. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Ohio law requires that an LLC name contain the words "limited liability company" or one of the following abbreviations: "LLC," "L.L.C.," "limited," "ltd.," or "ltd". Additionally, your business name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply).

    2. Prepare and file articles of organization with the Secretary of State.

    3. Negotiate and execute an operating agreement.

    • Ohio does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Ohio, you need to register for Ohio employment taxes using the Ohio Business Gateway.
    • Whenever you hire an employee in Ohio, you must inform both the IRS and the State of Ohio. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Ohio New Hire Reporting Center.
    • If you have an employee or employees in Ohio, you need to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities. The Ohio Bureau of Worker's Compensation administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Ohio
    • Ohio requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Ohio Rev. Code § 1705.28.

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    Forming an LLC in Pennsylvania

    Here is an outline of the steps you need to follow in order to form an LLC in Pennsylvania. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Pennsylvania law requires that an LLC name contain the words "company," "limited," "limited liability company," or an abbreviation of one of those terms. Additionally, your business name must be distinguishable from other names on file with the Department of State (limited exceptions apply). There are a large number of words that cannot be included in the name without prior approval. For a full list, see 15 Pa. Cons. Stat. § 1303 (link is to entire code, choose Title 15, Part II, Subpart B, Article B, Chapter 13, Subchapter A, and then locate the specific provision).
    • The Name Availabilities page on the Pennsylvania Department of State's website has additional information about checking the availability of your desired business name in Pennsylvania. You can also use the Search for a Business Entity page.

    2. Prepare and file a certificate of organization with the Department of State.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in the certificate of organization (see box 5 of the form certificate). For general information on the certificate of organization (usually called "articles of organization"), see the Articles of Organization page.

    3. File a Docketing Statement.

    • When you file a certificate of organization, you must also file a Docketing Statement with the Department of State. The Docketing Statement contains only basic business information including the name and type of business organization and a description of business activities. There is no fee to file this form.

    4. Negotiate and execute an operating agreement.

    • Pennsylvania does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    5. Obtain any required local licenses.

    6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Pennsylvania, you must inform both the IRS and the Commonwealth of Pennsylvania. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Pennsylvania New Hire Reporting website.
    • If you have an employee or employees in Pennsylvania, you are required to carry workers' compensation insurance. The Pennsylvania Department of Labor & Industry administers the program.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • LLCs are required to pay the Pennsylvania capital stock tax, depending on their income and net worth. The amount of tax is determined by first adding net income divided by .095 to net worth multiplied by .75 (NI/.095 + .75*NW). If the number you get is less than $300,000, you do not owe capital stock tax. If the number you get is greater than $300,000, the tax will amount to .389% (.00389) of all dollars over $300,000. The capital stock tax is being phased out and will no longer be in effect starting in 2011. Most small online publishing operations probably will not have sufficient net worth or income to trigger this tax obligation.

    7. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the certificate of organization, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Pennsylvania
    • Pennsylvania does not have a specific statutory provision stating what documents and records must be stored at an LLC's principal place of business. Nevertheless, it is a good idea to keep certain records -- see the LLC Records page for details.

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    Forming an LLC in Texas

    Here is an outline of the steps you need to follow in order to form an LLC in Texas. You should also read the general section on forming an LLC for information applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Texas law requires that an LLC name contain the words "limited liability company," "limited company," or an abbreviation of one of these phrases. Additionally, your business name must not be the same as, or deceptively similar to, any other names on file with the Secretary of State.
    • The Texas Secretary of State can provide a preliminary determination of business name availability. Call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to corpinfo@sos.state.tx.us.

    2. Prepare and file a certificate of formation with the Secretary of State.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in the certificate of formation (see Article 3 of the form certificate). For general information on the certificate of formation (usually called "articles of organization"), see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Texas does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Texas, you are subject to Texas employment taxes. You can register online using the Texas Employer Portal. For more information on being an employer in Texas, request a copy of the Employer Handbook.
    • Whenever you hire an employee in Texas, you must inform both the IRS and the State of Texas. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Texas Employer Portal.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • LLCs are subject to Texas's franchise tax. LLCs pay the greater of .25 percent of capital or 4.5 percent of earned surplus. LLCs that owe less than $100 do not pay any tax. In addition, LLCs do not owe any tax if the gross receipts from their entire business for both taxable capital and taxable earned surplus are each less than $150,000 during the period upon which the tax is based. These LLCs must file an abbreviated information report. Please see the Texas Franchise Tax on Corporations page for details.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the certificate of formation, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining an LLC in Texas

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    Forming an LLC in Virginia

    Here is an outline of the steps you need to follow in order to form an LLC in Virginia. You should also read the general section on forming an LLC for information that is applicable in any state.

    1. Choose a business name for the LLC and check for availability.

    • Virginia law requires that an LLC name contain the words "limited company" or "limited liability company" or their abbreviations "L.C.," "LC," "L.L.C.," or "LLC." Additionally, your business name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply), and may not include the words "Corporation," "Incorporated," "Limited Partnership" or the abbreviations "Corp.," "Inc.," "L.P." or "LP."
    • You can check the availability of an LLC name by contacting the Clerk's Office of the Virginia State Corporation Commission at (804) 371-9733 or (866) 722-2551.

    2. Prepare and file articles of organization with the State Corporation Commission of Virginia.

    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization (or the operating agreement). For general information on articles of organization, see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Virginia does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. Obtain any required local licenses.

    5. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Virginia, you need to apply for a VEC (Virginia Employment Commission) account number. You can do this via the Online Services for Businesses website, which can also register you for other business taxes (if applicable).
    • Whenever you hire an employee in Virginia, you must inform both the IRS and the State of Virginia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Virginia New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

    6. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Virginia
    • Virginia requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Va. Code § 13.1-1028.

    Jurisdiction: 

    Subject Area: 

    Forming an LLC in Washington

    Here is an outline of the steps you need to follow in order to form an LLC in Washington. You should also read the general section on forming an LLC for information that is applicable in any state. Additionally, you should familiarize yourself with the Washington Secretary of State's website and the Department of Licensing website, which have useful information and resources.

    1. Choose a business name for the LLC and check for availability.

    • Washington law requires that an LLC name contain the words "Limited Liability Company," the words "Limited Liability" and abbreviation "Co.," or the abbreviation "L.L.C." or "LLC." Additionally, your business name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply), and may not contain the words or phrases "Bank," "banking," "banker," "trust," "cooperative," "partnership," "corporation," "incorporated," or the abbreviations "corp.," "ltd.," or "inc.," or "LP," "L.P.," "LLP," "L.L.P.," or any combination of the words "industrial" and "loan," or any combination of any two or more of the words "building," "savings," "loan," "home," "association," and "society."
    • Consult Access Washington for information on how to check the availability of your desired business name in Washington.

    2. Prepare and file a certificate of formation with the Secretary of State.

    • The default rule in Washington is that an LLC is managed by all its members. If you want the LLC to be managed by on or more managers instead, then you should indicate that in your certificate of formation by checking "Yes" in the box which asks "MANAGEMENT OF LLC IS VESTED IN ONE OR MORE MANAGERS." For general information on the certificate of formation (usually called "articles of organization"), see the Articles of Organization page.

    3. Negotiate and execute an operating agreement.

    • Washington does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    4. File a Business License Application with the Washington Department of Licensing.

    • Before filing out the Business License Application, get the Business Licensing Guide so that you will fill out the application correctly.
    • You can file the Business License Application by printing out the form and mailing it, applying online, or by visiting a business licensing office in person. The filing fee is $20, which is a processing fee of $15, plus $5 to register a trade name. If you filed formation papers with the Secretary of State, write the Unified Business Identifier (UBI) number that was given to you on your Business License Application.
    • The Business License Application lets you register a "trade name" for your business, which you need to do if you want to operate your business under a name other than that listed in the certificate of formation.
    • The Business License Application also lets you create a state employment account, which you need to do if you will have an employee or employees in Washington. You should not set up an employment account unless you plan to employ someone in the next 90 days.
    • Check your local county or city clerk's office for any additional licensing requirements.

    5. File an Initial Annual Report with the Secretary of State.

    • You need to file an Initial Annual Report within 120 days of filing the certificate of formation. The filing fee is $10. If you file the certificate of formation by mail, you will receive the Initial Annual Report form by mail from the state. If you file the certificate online, you file the Initial Annual Report through the Online Application Forms page.

    6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have an employee or employees in Washington, you need to set up a state employment account using the Business License Application (discussed above).
    • Whenever you hire an employee in Washington, you must inform both the IRS and the State of Washington. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Washington New Hire Reporting website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • Washington LLCs must complete the state excise tax return, generally on a monthly or quarterly basis, and pay the business and occupation (B&O) tax. B&O taxes are assessed on gross revenue, regardless of whether the company makes a profit. Generally, if a business has gross revenue of less than $7,000 in a quarter, it will not have to pay B&O taxes that quarter, but it must still complete the excise tax return. The B&O tax rate is determined by type of business activity, with rates between 0.1 percent and 2.0 percent of gross revenue (most services are 1.5%). For more information, contact the Washington Department of Revenue at 1-800-647-7706.

    7. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the certificate of formation, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining an LLC in Washington
    • Washington LLCs must file an annual report and license renewal with the Washington Department of Licensing every year after formation. The filing fee is $69, and you can file the report and renewal online.
    • Washington requires certain documents to be kept at an LLC's principal place of business. A list of the required documents is located in Wash. Rev. Code § 25.15.135.

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    Forming an LLC in the District of Columbia

    Here is an outline of the steps you need to follow in order to form an LLC in the District of Columbia. You should also read the general section on forming an LLC for information that is applicable in any state. The D.C. Bar Pro Bono Program provides a helpful Guide for Business Owners on the Formation of a Limited Liability Company, and you can find additional information on the law governing D.C. LLCs on the D.C. Bar website.

    1. Choose a business name for the LLC and check for availability.

    • DC law requires an LLC name to contain the words "limited liability company" or the abbreviation "L.L.C." or "LLC". Additionally, your business name may not contain the words "Corporation", "Incorporated", "Limited Partnership", or the abbreviations "Corp.", "Inc.", or "L.P.", and may not be the same as, or deceptively similar to, that of any other foreign or domestic LLC, corporation, or limited partnership (including registered "fictitious" names).

    2. Prepare and file articles of organization with the Department of Consumer and Regulatory Affairs.

    • The filing fee is $165, including a $150 basic filing fee and a 10% technology fee. The Department of Consumer and Regulatory Affairs website has a sample articles of organization for a District of Columbia LLC -- you basically need to fill in the blanks. The website also has a helpful online registration interface to guide you through the filing process. You can file online by registering for the District's online filing system.
    • If the LLC will be managed by one or more managers, rather than all the members together, then you should put a clause saying that in your articles of organization. For general information on articles of organization, see the Articles of Organization page.

    3. File a Written Consent to Act as a Registered Agent form with the Department of Consumer and Regulatory Affairs.

    • The Department of Consumer and Regulatory Affairs website has the required form for you to fill out.

    4. Negotiate and execute an operating agreement.

    • The District of Columbia does not require an operating agreement in order to form an LLC, but executing one is highly advisable. There is no set criteria for the content of an operating agreement, but it typically includes topics such as how meetings are conducted, how the company will be managed, what capital contributions are required from each member, and how profits and losses will be allocated. The operating agreement does not need to be filed with the state. Please see the Operating Agreement page for details.

    5. Obtain any required local licenses.

    • The District of Columbia issues what is known as a Basic Business License (BBL) to new local businesses. The Department of Consumer and Regulatory Affairs website has a helpful Basic Business License Information page, which includes an online interface to help you determine whether you need a BBL.

    6. Determine what tax and other regulatory obligations the LLC has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Register for District of Columbia business taxes using the FR-500 Combined Business Tax Registration service. This service will tell you what taxes you will be responsible for (including income and employment taxes), guide you to what forms you will need to file, and tell you when they must be filed.
    • Whenever you hire an employee in the District of Columbia, you must inform both the IRS and the District of Columbia. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. Information on what to do on the District level will be detailed when you register for taxes using the FR-500 Combined Business Tax Registration service.

    7. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of organization, and a resolution identifying authorized signers if those names are not listed in the articles.
    Other Notable Requirements for Maintaining an LLC in the District of Columbia
    • DC LLCs must file a Two-Year Report with the Department of Consumer and Regulatory Affairs every two years. The filing fee is $150. Note that the first such report is due April 1st of the first year after incorporation, with each subsequent report filed every two years thereafter.
    • The District of Columbia also requires LLCs to provide certain information to members or managers. According to D.C. Code Ann. § 29-804.10, in member-managed LLCs, members have the right to inspect and copy business records the LLC maintains that are material to the member's rights and duties. The LLC also generally must provide members any information the company knows concerning its "activities and affairs, financial condition, and other circumstances" that is material to the members' rights and duties, and, if a member reasonably and properly requests it, "any other information concerning the company's activities and affairs, financial condition, and other circumstances." In a manager-managed LLC, a member only has a right to inspect and copy records if the member seeks the information for a reason material to the member's interest as a member, demands the information in writing and describes the information requested and why it is requested with reasonable particularity, and the information sought is directly connected to the member's purpose.

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    Forming a Corporation

    Here are the general steps you need to follow in order to form an corporation (specifically, a C corporation) in compliance with applicable laws. Make sure to consult your state page for state-specific details.

    1. Choose a business name for the corporation and check for availability.

    • As a general matter, the name must (a) contain the words "Corporation," "Incorporated," "Limited," or an abbreviation of one of these words ("Corp.", "Inc.", or "Ltd."); (b) not be the same as that of another corporation on file with the state; and (c) not contain words that suggest an association with the federal government or a restricted type of business, such as "Bank," "Cooperative," "Federal," "National," "United States," or "Reserve."
    • Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. Please see the Trademark for Business Naming section for details.

    2. Recruit and/or appoint a director or directors for the corporation.

    • A corporation's board of directors makes the major strategic and financial decisions for the corporation, including authorizing the issuance of stock and appointing corporate officers. Some states require that directors be named in the articles of incorporation, while others allow the owners/incorporators (those filing the paperwork) to appoint directors at the initial organizational meeting. The minimum number of directors varies based on state law, but generally three directors are required, unless there are fewer than three shareholders, in which case fewer than three directors are permitted. (Note: If a corporation only has one shareholder, all states allow that shareholder to serve as the sole director and officer of the corporation.)

    3. Prepare and file articles of incorporation with the appropriate state office, usually the Secretary of State.

    • There will be a filing fee, which generally ranges between $70 and $200 depending on the state, but certain states have higher fees (e.g., Massachusetts ($275) and Texas ($300)). See the state pages on forming a corporation for details on state filing fees.

    4. Create the corporation's bylaws.

    • Bylaws set out the details of how the business will be run, who will make what decisions, when decisions will be made, and the like.
    • You are not required to file bylaws with a state office, but you should keep a copy at your principal place a business.

    5. Hold an organizational meeting.

    • The owners/incorporators, or the initial directors if named in the articles of incorporation, should hold an initial organizational meeting to (1) appoint directors (if not named in the articles); (2) appoint corporate officers; (3) adopt the bylaws; (4) authorize the issuance of stock; (5) set the corporation's accounting year (fiscal year); (6) adopt a stock certificate form; (7) designate a bank; and (8) select a corporate seal.
    • Someone present at the meeting should record minutes of the meeting, and the minutes should be stored at the corporation's principal place of business.

    6. Issue stock certificates to the initial owners of the corporation.

    • A stock certificate is a document that certifies ownership of a specific number of shares in a corporation. Generally, shares are issued to the owners in return for capital contributions (either in cash, property, or services performed), which become the business's original operating capital. A corporation's board of directors sets the price to be paid by shareholders in return for shares.
    • The corporation should record the number of shares issues, to whom they were issued, and the amount paid, in a ledger kept at its principal place of business.
    • Issuing stock potentially implicates federal and state securities laws. Fortunately, if the corporation will issue shares to ten or less people who will actively participate in running the business, it will qualify for exemptions to federal and state securities registration requirements. Complying with federal and state securities laws is complex and burdensome -- you should contact a lawyer for assistance if you contemplate an issuance of stock to more than a few people who will not be involved in the day-to-day affairs of the business.

    7. Obtain any required local licenses.

    • As a business doing journalism, you are not required to obtain any federal or state licenses or permits relating to carrying on a particular trade. Most local or city governments, however, require every business to obtain a basic business license, sometimes called a tax registration certificate. You get this license from your city or county. The best way to get information about fees and procedures is to contact your county or city clerk's office or other local government authority. The local chamber of commerce and other small business owners might also be a good resource for information regarding local licenses and/or permits.

    8. Determine what tax obligations the corporation has, and take care of any necessary registrations.

    • by submitting the required information online at the IRS website. The EIN is issued immediately once the application information is validated;
    • by telephone at 1-800-829-4933 from 7:00 a.m. to 10:00 p.m. in your local time zone; or
    • The corporation likely will need to obtain a state employer identification number or account for tax purposes. You will also have to report any new hires as you make them. See the State Law: Forming a Corporation section for details on state requirements.
    • You should be aware that, as the owner of a small business, you may be subject to additional federal, state and local taxes and informational filing requirements, such as self-employment taxes and employment tax withholdings and filings. Please see the Tax Obligations of Small Businesses section for details.
    • Corporations pay income taxes on business profits, and a separate tax return on Form 1120 must be filed for the business. Please see the Corporations page on the IRS website for details.

    9. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your business. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

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    State Law: Forming a Corporation

     

    Choose your state from the list below for state-specific information on forming a corporation:

    Forming a Corporation in Arizona

    Steps to Create a Corporation

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Arizona. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Arizona Corporation Commission website, which has useful information and resources.

    1. Choose a business name for the corporation and check for availability.

    • Arizona law requires that a corporation name contain the word "association", "bank", "company", "corporation", "limited" or "incorporated" or an abbreviation of one of these words or words or "abbreviations of like import in another language." A.R.S. § 10‑401. Additionally, your corporation name must be distinguishable from the names of other Arizona corporations and certain other entities. Id.

    2. Recruit and/or appoint a director or directors for the corporation.

    • Arizona does not set a minimum age requirement for directors.
    • Directors need not be residents of Arizona or shareholders of the corporation, unless the articles of incorporation or bylaws so require. A.R.S. § 10‑802.

    3. Prepare and file articles of incorporation with the Arizona Corporation Commission.

    4. Create the corporation's bylaws.

    • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the state, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.
    • The bylaws should indicate the number of directors that will constitute the corporation's permanent board of directors, if that number is different from the number indicated in the articles of incorporation.

    5. Hold an organizational meeting.

    6. Issue stock certificates to the initial owners of the corporation.

    • The board of directors must authorize any issuance of shares, unless this power is reserved to the shareholders in the articles of incorporation. A.R.S. § 10‑621. Shares may be issued for "consideration consisting of any tangible or intangible property or benefit to the corporation including cash, services performed or other securities of the corporation, except that neither promissory notes nor future services constitute valid consideration." Id.

    7. Obtain any required local licenses.

    8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.

    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • If you have an employee or employees to whom you page wages for services performed in Arizona, you must register complete the Joint Tax Application for employer withholding and unemployment insurance. You can do this via the Arizona Department of Revenue website (click on "License a New Business"), which you can also use to register for other business taxes (if applicable).
    • Whenever you hire an employee in Arizona, you must inform both the IRS and the State of Arizona. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Arizona New Hire Reporting website.
    • Arizona law requires employers in Arizona to use the "E-Verify" system (a free Web-based service offered by the federal Department of Homeland Security) to verify the employment authorization of all new employees hired after December 31, 2007. A.R.S. § 23-214.

    9. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
    Other Notable Requirements for Maintaining a Corporation in Arizona
    • Arizona requires certain documents to be kept at a corporation's principal place of business. The required documents are described in A.R.S. § 10-1601.
    • A.R.S. § 10-1602 requires Arizona corporations to make certain documents available to shareholders of the corporation upon request.
    Additional Steps and Information about Forming an S Corporation
    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Arizona. There is no additional paperwork that must be filed with Arizona to obtain "S" status.

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    Forming a Corporation in California

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in California. You should also read the general section on forming a corporation for information applicable in any state. Additionally, you should familiarize yourself with the California Secretary of State's website, which has useful information and resources.

    1. Choose a business name for the corporation and check for availability.

    • Your business name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply). Additionally, the name may not contain the words "bank," " trust," "trustee," or related words.

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under California law, a corporation must have at least three directors, unless there are less than three shareholders. In that case, the number of directors may be equal to or greater than the number of shareholders. For example, if the corporation has only one shareholder, the number of directors may be one or two. If the corporation has two shareholders, the number of directors may be two (or three, which is the normal minimum).
    • California does not set forth a minimum age or residency requirement for directors.
    • Either the articles of incorporation or the corporation's bylaws must state the number of directors that will constitute the corporation's board of directors.

    3. Prepare and file articles of incorporation with the Secretary of State.

    4. Create the corporation's bylaws.

    • California law requires a corporation to create bylaws. There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

    5. File a Statement of Information with the Secretary of State.

    • The filing fee is $25. The Secretary of State's website has a simple, fill-in-the-blank form for the Statement of Information. Instructions are included. It must be filed within 90 days of filing the articles of incorporation.

    6. Hold an organizational meeting.

    7. Issue stock certificates to the initial owners of the corporation.

    • See the general section on Forming a Corporation for details. You can find the California statute relating to issuance of stock certificates at Cal. Corp. Code § 416. Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

    8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you will be paying at least $100 to an employee or employees in a quarter (this includes corporate officers), you are subject to California employment taxes and must register for a California employer account number within 15 days of paying that $100. You can register for employment taxes and get your account number online using the Employment Development Department's website. These taxes must be paid quarterly. For more information on being an employer, including tax information, see the California Employer's Guide.
    • California imposes an $800 minimum franchise tax on corporations doing business in the state. This minimum tax is separate from any income, self-employment, or payroll tax. For many, this $800 minimum tax could be a significant impediment to forming a corporation in California, especially if you have little or no expected income from your online publishing activities.
    • California's current income tax rate for corporations is 8.84%.

    9. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining a Corporation in California

    • Cal. Corp. Code § 1501 (scroll down) states that a corporation must send an annual report to shareholders within 120 days of the end of its fiscal year. This requirement does not apply, however, if the corporation has less than 100 shareholders and its bylaws expressly waive this requirement.

    Additional Steps and Information about Forming an S Corporation

    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with California. There is no additional paperwork that you need to file with California.
    • California does not recognize "S" status in the same way the IRS does. California taxes the corporate profits of an S corporation before distribution to shareholders at a rate of 1.5% (as opposed to 8.84% for C corporations).
    • While the corporate tax rate for S corporations is lower than that for C corporations, the $800 minimum franchise tax still applies.

    Additional Steps and Information about Forming a Close Corporation

    • California law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders (thirty-five maximum) that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
    • The articles of incorporation of a close corporation are different from ordinary articles of incorporation. The Secretary of State's website has a sample articles of incorporation for a close corporation. Among other things, close corporation articles must contain:
    • a statement that all the corporation's issued shares of all classes shall be held by not more than a specified number of persons, not exceeding thirty-five; and
    • this statement: "This corporation is a close corporation."
    • Running a close corporation generally requires a shareholders' agreement. This is an agreement among all the corporation's shareholders, in which they agree to the relaxation of various corporate formalities, such as holding frequent shareholder and board meetings. If you are interested in forming a close corporation, you should contact a lawyer.

    Additional Steps and Information about Forming a Special/Public Purpose Corporation

    • California law allows for the creation of two special corporate forms for organizations intending to serve some public benefit, beyond purely seeking profits. The two forms are known as the "flexible purpose corporation" and the "benefit corporation." Under either form, the corporation pursues some additional goal—such as environmental responsibility, or general social benefit—beyond the traditional profit-seeking of a corporation. The directors of the corporations are then immune from liability based on their pursuit of these other goals. This .pdf document explains the basics of these two forms. 
    • The "flexible purpose" corporation, created by the Corporate Flexibility Act of 2011 and governed by the California Corporations Code, Division 1.5 (Chapters 1-11, Sections 2500-3503), allows a corporation to specify certain special purposes. The director(s) of a flexible corporation then pursue these special purposes in addition to the traditional profit motive, and are immunized from liability for pursuing the special purposes. See Section 2700(c)-(d). Section 2602 specifies the available special purposes, but in summary:
      • the articles of incorporation must state either that the corporation is committed to a specific purpose, or to engaging in a specific profession (Section 2602(b)(1)); and,
      • the articles must also specify at least one from a list of additional goals, which include environmental responsibility, community/societal benefit, or any purpose that a nonprofit corporation may pursue.
    • The Corporate Flexibility Act also contains specific requirements for reporting to shareholders (Sections 3500-3503), and specifies methods through which corporations may convert to and from a flexible purpose corporation (Sections 3300-3305).
    •  The "benefit" corporation, governed by California Corporations Code, Division 3, Part 13 (Chapters 1-4, Sections 14600-14631), has "the purpose of creating a general public benefit." Section 14601(c) of the law defines "general public benefit" as having "a material positive impact on society and the environment," and specifies the method by which this standard should be judged.
    • In addition to the traditional profit goal of a corporation, the directors of a benefit corporation must also take into account "community and societal considerations," environmental effects, and other particular factors. Section 14620(b)(1-7).
    • Directors are immunized from liability if they properly take into account all of these factors. Section 14620(g). Directors are further immune from claims that the benefit corporation has failed to actually create a public benefit. Section 14620(f).
    • If you wish, you may specify additional public benefits that your benefit corporation will pursue. The list of permissible specific benefits, enumerated at Section 14601(e), includes "any other particular benefit for society or the environment." These specific benefits then become binding on the directors as well. Section 14620(b)(7).
    • Benefit corporations also must follow specific reporting requirements (Section 14630). Existing corporations may convert to a benefit corporation (Section 14603(a)).

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    Forming a Corporation in Florida

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Florida. You should also read the general section on forming a corporation for information applicable in any state. Additionally, you should familiarize yourself with the Florida Department of State, Division of Corporations website, which has useful information and resources.

    1. Choose a business name for the corporation and check for availability.

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under Florida law, a corporation must have at least one director.

    • Directors must be at least eighteen years old.

    • Directors need not be residents of Florida or shareholders of the corporation, unless the articles of incorporation so require.

    • Either the articles of incorporation or the corporation's bylaws must state the number of directors that will constitute the corporation's board of directors. The initial director or directors of the corporation may -- but need not -- be named in the articles.

    3. Prepare and file articles of incorporation with the Florida Department of State, Corporations Division.

    4. Create the corporation's bylaws.

    • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Division of Corporations, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

    5. Hold an organizational meeting.

    6. Issue stock certificates to the initial owners of the corporation.

    • See the General: Forming a Corporation section for details. The Florida statute relating to issuance of stock certificates is located at Fla. Stat. ch. 607.0625. Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

    7. Obtain any required local licenses.

    8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    9. Open a Bank Account for Your Business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining a Corporation in Florida

    • Florida corporations must file an Annual Report with the Division of Corporations one year after their date of formation and every year thereafter. The filing fee is $150.

    • Florida requires certain documents to be kept at a corporation's principal place of business. A list of the required documents is located in Fla. Stat. ch. 607.1601 and Fla. Stat. ch. 607.1602.

    • Fla. Stat. ch. 607.1620 states that a corporation must send certain financial statements to shareholders within 120 days of the end of its fiscal year, unless shareholders vote to waive this requirement.

    Additional Steps and Information about Forming an S Corporation

    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.

    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Florida.

    • No further paperwork needs to be filed with Florida in order to achieve "S" status, but in the corporation's first year as an S corporation it must file the informational portion of Form F-1120 (the Florida corporation income tax return). After the first year, this filing is only required if the company has federal taxable income.

    • Florida does not collect any personal income tax, and therefore S corporations are effectively not taxed by the state.

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    Forming a Corporation in Georgia

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Georgia. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Georgia Secretary of State's website and the First Stop Business Guide, which contain useful information and resources.

    1. Choose a business name for the corporation and check for availability.

    • Georgia law requires that a corporation name include the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd.," or words or abbreviations of like import in another language. Additionally, your corporation name must be distinguishable from other names on file with the state, and it may not contain anything which, in the reasonable judgment of the Secretary of State, is obscene. It may not exceed 80 characters, including spaces and punctuation.

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under Georgia law, a corporation must have at least one director.
    • Directors must be at least eighteen years old.
    • Directors need not be residents of Florida or shareholders of the corporation, unless the articles of incorporation so require.
    • Either the articles of incorporation or the corporation's bylaws must state the number of directors that will constitute the corporation's board of directors. The initial director or directors of the corporation may -- but need not -- be named in the articles.

    3. Prepare and file articles of incorporation with the Secretary of State.

    • The articles of incorporation must be accompanied by Transmittal Form 227, which certifies to the state that you are filing articles and will fulfill the publishing requirement explained in the next step.

    4. Publish a notice of intent to incorporate in a local newspaper.

    5. Create the corporation's bylaws.

    • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

    6. Hold an organizational meeting.

    • See the general section on Forming a Corporation for details. You can find the Georgia statute relating to the organizational meeting at Ga. Code Ann. § 14-2-205 (link is to entire code; click through to Title 14, Chapter 2, Article 2 and then locate the specific provision).

    7. Issue stock certificates to the initial owners of the corporation.

    • See the general section on Forming a Corporation for details. The Georgia statute relating to issuance of stock certificates is located at Ga. Code Ann. § 14-2-625 (link is to entire code; click through to Title 14, Chapter 2, Article 6 and then locate the specific provision). Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

    8. Obtain any required local licenses.

    9. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Georgia, you must inform both the IRS and the State of Georgia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Georgia New Hire Reporting Website.
    • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • Georgia's current corporate income tax rate is 6% of net income attributable to business done in Georgia. In addition, corporations formed in Georgia are subject to a net worth tax. The minimum net worth tax is $10 for a net worth less than $10,001. The maximum is $5,000 for a net worth in excess of $22 million. The net worth tax table can be found in the IT-611 Booklet under "Net Worth Tax Table."

    10. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining a Corporation in Georgia

    • Georgia requires certain documents to be kept at a corporation's principal place of business. The required documents are described in Ga. Code Ann. §§ 14-2-1601 and 14-2-1602 (link is to entire code; click through to Title 14, Chapter 2, Article 16, Part 1, and then locate the specific provisions).
    • Ga. Code Ann. § 14-2-1620 (link is to entire code; click through to Title 14, Chapter 2, Article 16, Part 2, and then locate the specific provision) states that a corporation must send certain financial statements to shareholders within four months of the end of its fiscal year and before the annual meeting of shareholders (if the meeting is less than four months after the end of the fiscal year).

    Additional Steps and Information about Forming an S Corporation

    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Georgia. There is no additional paperwork that you need to file with Georgia in order to obtain "S" status.
    • If the corporation has non-resident shareholders, however, every year they must file Form 600S-CA, agreeing to pay Georgia income tax on their proportionate part of the corporation's Georgia taxable income.
    • Even if your S corporation has no taxable income, you must still file a Georgia corporate income tax return on Form 600-S every year.

    Additional Steps and Information About Forming a Close Corporation

    • Georgia law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders (fifty maximum) that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
    • In Georgia, the articles of incorporation of a close corporation must contain a statement that the corporation is "a statutory close corporation." The articles (or bylaws or a shareholders' agreement) may include a provision stating that the corporation will be managed by its shareholders rather than a board of directors pursuant to Ga. Code Ann. § 14-2-922 (link is to entire code; click through to Title 14, Chapter 2, Article 9, and then locate the specific provision). If you are interested in forming a close corporation, you should contact a lawyer.

    Jurisdiction: 

    Subject Area: 

    Forming a Corporation in Illinois

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Illinois. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Illinois Secretary of State's website  and its Guide to Organizing Domestic Corporations, which contain valuable resources and information.

    1. Choose a business name for the corporation and check for availability.

    • Illinois law requires that a corporation name contain the word "corporation," "company," "incorporated," or "limited," or an abbreviation of one of such words. Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State. Other more obscure limitations apply -- see 805 Ill. Comp. Stat. 5/4.05 for details.

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under Illinois law, a corporation must have at least one director.
    • There is no minimum age requirement for directors, but incorporators (i.e., those who file the paperwork) must be at least eighteen years old.
    • Directors need not be residents of Illinois or shareholders of the corporation, unless the articles of incorporation so require.
    • The articles of incorporation may set forth the number of directors that will constitute the corporation's board of directors and identify the initial director or directors by name and address, but this is not required. If the number of directors is not set in the articles, it should be set in the bylaws.

    3. Prepare and file articles of incorporation with the Secretary of State.

    4. Record the certificate of incorporation and articles with the Recorder of Deeds.

    • After you file articles of incorporation, the Secretary of State will send you a "certificate of incorporation," which indicates that the state has accepted your articles. Within fifteen days of receiving this certificate, you must record both it and your articles of incorporation with the Office of the Recorder of Deeds in the county where your office is located.

    5. Create the corporation's bylaws.

    • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

    6. Hold an organizational meeting.

    7. Issue stock certificates to the initial owners of the corporation.

    • See the general section on Forming a Corporation for details. The Illinois statute relating to issuance of stock certificates is located at 805 Ill. Comp. Stat. 5/6.35 (scroll down). Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

    8. Obtain any required local licenses.

    9. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • If you have one or more employees in Illinois, you must carry workers' compensation insurance. You may choose to obtain workers' compensation insurance for yourself, but you do not need to. (If you have a workers' compensation policy for your employees, you must contact your insurance company if you DO NOT want to be covered.)
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • Illinois's corporate income tax rate is 4.8% plus a 2.5% personal property replacement tax (7.3% total).
    • Illinois also imposes a franchise tax on corporations. The tax is based on the corporation’s paid-in capital in Illinois. The initial franchise tax rate is 0.15% of paid-in capital in Illinois, and the minimum payment is $25. After a corporation’s first year, the franchise tax is due annually at a rate of .10%, again with a minimum of $25.00.

    10. Open a bank account for your business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining a Corporation in Illinois

    • Illinois requires certain documents to be kept at a corporation's principal place of business. The required documents are described in 805 Ill. Comp. Stat. 5/7.75 (scroll down).

    Additional Steps and Information about Forming an S Corporation

    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Illinois. There is no additional paperwork that you need to file in Illinois.
    • Illinois does not recognize "S" status in the same way the federal government does. Illinois imposes personal property replacement tax on the corporate profits of an S corporation at a rate of 1.5% (as opposed to a total of 7.3% for C corporations). Here is the Small Business Corporation Replacement Tax Return.

    Additional Steps and Information about Forming a Close Corporation

    • Illinois law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders (thirty-five maximum) that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
    • Running a close corporation generally requires a shareholders' agreement. This is an agreement among all the corporation's shareholders, in which they agree to the relaxation of various corporate formalities, such as holding frequent shareholder and board meetings. If you are interested in forming a close corporation, you should contact a lawyer.

    Jurisdiction: 

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    Forming a Corporation in Indiana

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Indiana. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Indiana Secretary of State's website, which has extremely useful information and resources.

    1. Choose a business name for the corporation and check for availability.

    • Indiana law requires that a corporation name contain the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd.," or words or abbreviations of like import in another language. Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply).

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under Indiana law, a corporation must have at least one director.
    • There is no minimum age requirement.
    • Directors need not be residents of Indiana or shareholders of the corporation, unless the articles of incorporation so require.
    • Either the articles of incorporation or the corporation's bylaws must state the number of directors that will constitute the corporation's board of directors. The initial director or directors of the corporation may be named in the articles, but this is not required.

    3. Prepare and file articles of incorporation with the Secretary of State.

    4. Create the corporation's bylaws.

    • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

    5. Hold an organizational meeting.

    6. Issue stock certificates to the initial owners of the corporation.

    • See the Forming a Corporation section for details. The Indiana statutes relating to issuance of stock certificates are located in Chapter 26 of Article 1 of Title 23 of the Indiana Code. Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

    7. Obtain any required local licenses.

    8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

    • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
    • Whenever you hire an employee in Indiana, you must inform both the IRS and the State of Indiana. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Indiana New Hire Reporting Center website.
    • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
    • Indiana's current corporate income tax rate is 8.5% of gross income.

    9. Open a Bank Account for Your Business.

    • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

    Other Notable Requirements for Maintaining a Corporation in Indiana

    • Indiana requires certain documents to be kept at a corporation's principal place of business. The required documents are described in Chapter 52 of Article 1 of Title 23 of the Indiana Code.

    Additional Steps and Information about Forming an S Corporation

    • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
    • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Indiana. There is no additional paperwork that must be filed with Indiana to obtain "S" status.
    • If the corporation has nonresident shareholders, you must withhold income tax at a rate of 3.4% on distributions to them. You can find instructions for how to do this withholding on page 3 of the S Corporation Income Tax Booklet. Exception: Some states have entered into a "reverse-credit agreement" with Indiana, which means that if a nonresident shareholder resides in Arizona, California, Oregon, or the District of Columbia, income tax does not need to be withheld.

    Jurisdiction: 

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    Forming a Corporation in Massachusetts

    Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Massachusetts. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Secretary of the Commonwealth, Corporations Division website, which has helpful resources and information.

    1. Choose a business name for the corporation and check for availability.

    • Massachusetts law requires that a corporation name contain the word "corporation," "incorporated," "company," or "limited" or the abbreviation "corp.," "inc.," or "ltd.," or words or abbreviations of like import in another language. Additionally, your corporation name may not be the same as, or deceptively similar to, other names on file with the Secretary of the Commonwealth (limited exceptions apply).

    2. Recruit and/or appoint a director or directors for the corporation.

    • Under Massachusetts law, a corporation must have a board of directors consisting of at least one person; there is no maximum limit on the number of directors.  

    • The number of directors that comprise the board should be specified in the corporation's articles of organization or bylaws.  If the articles of organization or bylaws do not define the size of the board of directors, the Massachusetts default rules apply: if the corporation has three or more shareholders, the corporation must have no fewer than three directors. If the corporation has only two shareholders, there may be no fewer than two directors on the board.  You can find the Massachusetts statute relating to directors of corporations at Mass. Gen. Laws ch. 156D, § 8.03.
      • There is no minimum age requirement for directors.
      • Directors need not be residents of Massachusetts or shareholders of the corporation, unless the articles of organization or bylaws so require.

      3. Prepare and file articles of organization with the Secretary of the Commonwealth.

      • The form for the articles of organization asks for the names and addresses of the individual or individuals who will serve as the corporation's initial director(s), president, treasurer, and secretary of the corporation. If there is only one shareholder, one person can fill all of these roles. This information does not become a permanent part of the corporation's articles.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.
      • Even if you listed the names and addresses of the corporation's initial directors in the form for the articles of organization (see above), you should set forth in the bylaws the number of directors that will constitute the corporation's board of directors.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      • See the Forming a Corporation section for details. The Massachusetts statute relating to issuance of stock certificates is located at Mass. Gen. Laws ch. 156D, § 6.25. Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Massachusetts New Hire Reporting Center website.
      • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Massachusetts's current tax rates for corporations are 9.5% of gross income and .26% of net worth or tangible property (if any). Importantly, the combined minimum tax is $456, which is is separate from any personal income, self-employment, or payroll taxes. Sole proprietors, partnerships, and LLCs are not subject to this minimum tax.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

      Other Notable Requirements for Maintaining a Corporation in Massachusetts

      Additional Steps and Information about Forming an S Corporation

      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Massachusetts. There is no additional paperwork that must be filed with Massachusetts to obtain "S" status.
      • S Corportions must file Tax Form 355S with the Massachusetts Department of Revenue every year.
      • While S corporation do not pay state income tax on corporate profits (unless gross receipts exceed $6,000,000), they are subject to the .26% net worth tax and the $456 minimum tax.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in Michigan

      Steps to Create a Corporation

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Michigan. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Michigan Department of Labor & Economic Growth, Bureau of Commercial Services website, which has useful resources, but is difficult to navigate.

      1. Choose a business name for the corporation and check for availability.

      • Michigan law requires that a corporation name contain the word "corporation," "company," "incorporated," or "limited" or one of the following abbreviations: "corp.," "co.," "inc.," or "ltd." Additionally, your corporation name must be distinguishable from other names on file with the state.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Michigan law, a corporation must have at least one director.
      • There is no minimum age requirement for directors.
      • Directors need not be residents of Michigan or shareholders of the corporation, unless the articles of incorporation or bylaws so require.
      • The number of directors that will constitute the corporation's board of directors should be set forth in the bylaws.

      3. Prepare and file articles of incorporation with the Department of Labor & Economic Growth, Bureau of Commercial Services, Corporation Division.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the state, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Whenever you hire an employee in Michigan, you must inform both the IRS and the State of Michigan. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Michigan New Hire Reporting Center website.
      • As a business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • As of January 1, 2008, a new business tax regime -- called the Michigan Business Tax -- takes effect in Michigan. Under it, qualifying small businesses in Michigan will pay a tax equal to 1.8% of adjusted business income. Probably all small online publishing businesses will qualify -- the law requires that officers of the corporation not be paid more than $160,000, gross receipts not exceed $18 million, and business income not exceed $1.3 million. For more information on the Michigan Business Tax, see the Michigan Business Tax FAQ on the Michigan Department of Treasury website.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

      Other Notable Requirements for Maintaining a Corporation in Michigan

      • Michigan corporations must file an Annual Report every year with the Department of Labor & Economic Growth before May 15. The filing fee is $25, and you can file the form online via the FILEonline Service.

      Additional Steps and Information about Forming an S Corporation

      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Michigan. There is no additional paperwork that must be filed with Michigan to obtain "S" status.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in New Jersey

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in New Jersey. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the New Jersey Division of Revenue website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • New Jersey law requires that a corporation name contain the word "corporation," "company," "incorporated," or an abbreviation of one of those words, or abbreviations of like import in other languages. Additionally, your corporation name must be distinguishable from other names on file with the state.
      • For information about checking the availability of your desired business name in New Jersey, see the Check Business Name Availability page on the Division of Revenue's website.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under New Jersey law, a corporation must have at least one director.
      • Directors must be at least eighteen years of age.
      • Directors need not be residents of New Jersey or shareholders of the corporation, unless the certificate of incorporation or the bylaws so require.
      • The certificate of incorporation must set forth the number of directors constituting the first board and the names and addresses of the persons who are to serve as directors.

      3. Prepare and file a certificate of incorporation with the Division of Revenue.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the state, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      • See the general section on forming a corporation for details. The New Jersey statutes relating to issuance of stock certificates are located in N.J. Stat § 14A:7-11 (link is to the entire code, you need to click through to Title 14A, Article 7, and then locate the specific provision). Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • All new businesses must register with the Division of Revenue using the Business Registration Application. Upon registering, you will receive the forms, returns, instructions, and other information needed to comply with New Jersey law.
      • Whenever you hire an employee in New Jersey, you must inform both the IRS and the State of New Jersey. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the New Jersey New Hire Reporting Directory.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • New Jersey's current corporate income tax rate for entities with net income greater than $100,000 is 9.0%. If net income was between $50,001 and $100,000, the rate is 7.5%. For businesses with $50,000 or less, the rate is 6.5%. The minimum tax for businesses with New Jersey gross receipts under $100,000 is $500.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN) and a copy of the certificate of incorporation. Here is one example of the documentation that banks ask for.

      Note: New Jersey law requires incorporators to be at least eighteen years old.

      Other Notable Requirements for Maintaining a Corporation in New Jersey
      • New Jersey requires certain documents to be kept at a corporation's principal place of business. The required documents are described in N.J. Stat § 14A:5-28 (link is to the entire code, you need to click through to Title 14A, Article 5, and then locate the specific provision).
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with New Jersey.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in New York

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in New York. You should also read the general section on forming a corporation for information applicable in any state. Additionally, you should familiarize yourself with the New York Department of State's website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • New York law requires that a corporation name contain the word "Incorporated," "Corporation," or "Limited," or one of the following abbreviations: "Inc.," "Corp." or "Ltd." Additionally, your corporation name must be distinguishable from the names of other corporations, limited liability companies, and limited partnerships already on file with the Department of State. There are a large number of words that cannot be included in the name without prior approval. For a full list, see N.Y. Bus. Corp. Laws § 301.
      • You can search for the availability of your proposed name by writing to the Department of State, Division of Corporations, 41 State Street, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a corporate name (or names) and list the name (or names) to be searched. There is a $5 fee for each name, which must accompany the request. Searching the availability of a corporate name does not reserve the name. You may also search the New York Corporation and Business Entity Database to help you identify names that have already been taken, but this database might not be complete.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under New York law, a corporation must have at least one director.
      • Directors must be at least eighteen years old.
      • Directors need not be residents of New York or shareholders of the corporation, unless the certificate of incorporation or bylaws so require.
      • It is a good idea to set forth the number of directors who will constitute the board of directors in the bylaws. If you do not do so, the number will be one.

      3. Prepare and file a certificate of incorporation with the Department of State.

      • Every business corporation must designate in its certificate the number of shares that the corporation has authority to issue and must state the "par value" of the shares or whether they are without "par value." Shares without par value may be issued or sold at any price. Shares with a stated par value cannot be issued or sold at a price less than the stated par value. By default, the form developed by the Department of State contains an authorized stock structure of 200 shares with no par value. Most corporations are formed with 200 shares no par value. Nothing more needs to be added unless you wish to have a different stock structure. If this is the case, delete the present statement and insert the desired number of shares and a statement of their par value or a statement that they are without par value. The $10 minimum tax (see above) authorizes the corporation to issue 200 shares no par value. Corporations wishing to authorize more than 200 shares no par value or par value shares totaling more than $20,000 must pay more tax -- the rate is 5 cents per share of no par value stock and 1/20 of one percent (.05%) of the par value of the shares that have a stated par value.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      • See the general section on forming a corporation for details. The New York statute relating to issuance of stock certificates is located at N.Y. Bus. Corp. Laws § 508. Unless the certificate of incorporation states otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received) for each share of stock.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Register for New York employment taxes. You can learn more about and register for employment taxes at the New York State Department of Taxation and Finance's Business Taxpayer Home Page.
      • Whenever you hire an employee in New York (including corporate officers), you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information at the New York New Hire Home Page.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • New York's corporate income tax has a complex structure. You are encouraged to discuss your New York state tax obligations with a tax accountant.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

      Note: New York law requires that incorporators (i.e., the people filing the paperwork) be at least eighteen years old.

      Other Notable Requirements for Maintaining a Corporation in New York
      • New York corporations must file a Biennial Statement with the Department of Revenue every two years after the date of formation. The Biennial Statement is made on a form provided by the Department of State. For corporations, the Biennial Statement is automatically mailed to the address of the principal executive office or, if none is listed in the certificate, the form is mailed to the address for service of process. The Biennial Statement is mailed one month prior to its due date. The filing fee is $9.
      • New York requires certain documents to be kept at a corporation's principal place of business. The required documents are described in N.Y. Bus. Corp. Laws § 624 (link is to entire code, you need to click on the Business Corporation section, then choose Article 6 and locate the specific provision).
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with New York. There is no additional paperwork that must be filed with New York to obtain "S" status.
      • New York subjects S corporations to a fixed-dollar minimum corporate tax. You are encouraged to discuss your New York tax obligations with a tax accountant.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in North Carolina

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in North Carolina. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the North Carolina Secretary of State's website, which has extremely useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • North Carolina law requires that a corporation name contain the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd." Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply).

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under North Carolina law, a corporation must have at least one director.
      • There is no minimum age requirement for directors.
      • Directors need not be residents of North Carolina or shareholders of the corporation, unless the articles of incorporation or bylaws so require.
      • Either the articles of incorporation or the corporation's bylaws must state the number of directors that will constitute the corporation's board of directors. The initial director or directors of the corporation may be named in the articles, but this is not required.

      3. Prepare and file articles of incorporation with the Secretary of State.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation must keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees (including corporate officers), you need to register for NC employment taxes at any of the taxpayer service centers located throughout the state. The Department of Revenue has a directory of taxpayer service centers that will guide you to the most convenient location.
      • Whenever you hire an employee in North Carolina, you must inform both the IRS and the State of North Carolina. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the North Carolina New Hire Reporting website.
      • If you have three or more or employees (including corporate officers and shareholders who otherwise work for the company), you are required to carry workers' compensation insurance. The North Carolina Industrial Commission administers the program. Its website has a useful FAQ.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • North Carolina's current tax rate for corporations is 6.9% of gross income, plus a franchise tax. The minimum franchise tax is $35.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
      Other Notable Requirements for Maintaining a Corporation in North Carolina
      • North Carolina corporations must file an Annual Report every year. You may file online at the Secretary of State’s website using the Online Annual Report Editor. The fee is $18 to file online. Alternatively, you may file a paper copy with the Department of Revenue, along with your tax return. You should be able to download a paper copy of the report from the Secretary of State's website, but the link was not working at the time of writing. The filing fee for paper filing is $25.
      • N.C. Gen. Stat. §55-16-20 requires North Carolina corporations to make certain annual financial statements available to shareholders of the corporation.
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with North Carolina. There is no additional paperwork that must be filed with North Carolina to obtain "S" status.
      • If an S corporation has shareholders who are not residents of North Carolina, the company must submit Form NC-NA with its first tax return (one form for each non-resident shareholder). This form must be signed by the shareholder, who agrees to pay North Carolina income tax on their share of S corporation income.
      • While S corporations are not subject to corporate income tax in North Carolina, they are responsible for paying the franchise tax (see above). The minimum franchise tax is $35.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in Ohio

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Ohio. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Ohio Secretary of State's website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • Ohio law requires that a corporation name end with or include the word or abbreviation "company," "co.," "corporation," "corp.," "incorporated," or "inc." Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply), and may not contain any language that indicates or implies that the corporation is connected with a government agency, another state, or the United States.
      • The Secretary of State's website has advice and links to help you check the availability of your desired business name.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Ohio law, a corporation must have at least three directors, unless there are less than three shareholders. In that case, the number of directors may be equal to or greater than the number of shareholders. For example, if the corporation has only one shareholder, the number of directors may be one or two. If the corporation has two shareholders, the number of directors may be two (or three, which is the normal minimum).
      • There is no minimum age requirement for directors.
      • Directors need not be residents of Ohio or shareholders of the corporation, unless the articles or the corporation's "regulations" so require.
      • Either the articles of incorporation or the corporation's "regulations" should state the number of directors that will constitute the corporation's board of directors. The initial director or directors of the corporation may be named in the articles, but this is not required.

      3. Prepare and file articles of incorporation with the Secretary of State.

      4. Create the corporation's "regulations."

      • Where other states generally require a corporation to create bylaws, Ohio law speaks of "regulations." Despite the different name, the regulations are the same as ordinary bylaws. There is no set criteria for them, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. Making matters somewhat more complicated, Ohio law also permits directors to adopt "bylaws" to regulate board affairs. These "bylaws" must be consistent with the regulations and the articles of incorporation. You are not required to file the regulations with the Secretary of State, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees in Ohio (including corporate officers), you need to register for Ohio employment taxes using the Ohio Business Gateway.
      • Whenever you hire an employee in Ohio, you must inform both the IRS and the State of Ohio. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Ohio New Hire Reporting Center.
      • If you have an employee or employees in Ohio, you need to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities. The Ohio Bureau of Worker's Compensation administers the program.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
      Other Notable Requirements for Maintaining a Corporation in North Carolina
      • Ohio requires certain documents to be kept at a corporation's principal place of business. The required documents are described in Ohio Rev. Code § 1701.37.
      • Ohio Rev. Code § 1701.378 requires Ohio corporations to provide annual financial statements to shareholders of the corporation.
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Ohio. There is no additional paperwork that must be filed with Ohio to obtain "S" status.
      Additional Steps and Information about Forming a Close Corporation
      • Ohio law has a provision relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
      • In Ohio, forming a close corporation requires that all shareholders of the corporation assent to a shareholders' agreement in writing, and that the shareholders' agreement be set forth in the articles of incorporation or the regulations, or in a written agreement that is entered into the minutes of a shareholders' meeting. For details, please see Ohio Rev. Code § 1701.591. If you are interested in forming a close corporation, you should contact a lawyer.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in Pennsylvania

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Pennsylvania. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Pennsylvania Department of State, Corporations Bureau website, which has useful resources and information.

      1. Choose a business name for the corporation and check for availability.

      • Pennsylvania law requires that a corporation name contain the word "corporation," "company," "incorporated" or "limited," an abbreviation of any of these words, or words or abbreviations of like import in languages other than English. Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply). There are a large number of words that cannot be included in the name without prior approval. For a full list, see 15 Pa. Cons. Stat. § 1303 (link is to entire code, choose Title 15, Part II, Subpart B, Article B, Chapter 13, Subchapter A, and then locate the specific provision).
      • The Name Availabilities page on the Pennsylvania Department of State's website has additional information about checking the availability of your desired business name in Pennsylvania. You can also use the Search for a Business Entity page.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Pennsylvania law, a corporation must have at least one director.
      • Directors must be at least eighteen years of age.
      • Directors need not be residents of Pennsylvania or shareholders of the corporation, unless the articles of incorporation or bylaws require.
      • The corporation's bylaws should state the the number of directors that will constitute the corporation's board of directors. If no number is designated, the corporation will be required to have three directors.

      3. Prepare and file articles of incorporation with the Department of State, Corporations Bureau.

      4. File a Docketing Statement.

      • When you file articles of incorporation, you must also file a Docketing Statement with the Department of State. The docketing statement contains only basic information like the name and type of business organization and a description of business activities. There is no fee to file this form.

      5. Fulfill the "advertising requirement."

      • You need to publish a statement of your intent to file or the actual filing of the articles of incorporation in two newspapers of general circulation, one of which is a legal journal. The Department of State's website has a Geographical Listing of Legal Publications to help you find a legal journal in your county. You don't need to send proof of advertising to the Department of State, but you should file the proof with the minutes of the corporation. The advertisements must contain the name of the proposed corporation and a statement that the corporation is to be or has been organized under the provisions of the BCL of 1988.

      6. Create the corporation's bylaws

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Department of State, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      7. Hold an organizational meeting.

      8. Issue stock certificates to the initial owners of the corporation.

      • See the general section on forming a corporation for details. The Pennsylvania statute relating to issuance of stock certificates is located in 15 Pa. Cons. Stat. § 1528 (link is to entire code, choose Title 15, Part II, Subpart B, Article B, Chapter 15, Subchapter B, and then locate the specific provision). Unless the bylaws state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received in cash, property, or services) for each share of stock.

      9. Obtain any required local licenses.

      10. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Whenever you hire an employee in Pennsylvania, you must inform both the IRS and the Commonwealth of Pennsylvania. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Pennsylvania New Hire Reporting website.
      • If you have an employee or employees in Pennsylvania, you are required to carry workers' compensation insurance. The Pennsylvania Department of Labor & Industry administers the program.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Pennsylvania's corporate tax is comprised of a corporate income tax and a capital stock tax. The net income tax is collected at a rate of 9.99%. The capital stock tax is somewhat complicated, determined by first adding net income divided by .095 to net worth multiplied by .75 (NI/.095 + .75*NW). If the number you get is less than $300,000, you do not owe capital stock tax. If the number you get is greater than $300,000, the tax will amount to .389% (.00389) of all dollars over $300,000. The capital stock tax is being phased out and will no longer be in effect starting in 2011. Most small online publishing operations probably will not have sufficient net worth or income to trigger the capital stock tax obligation.

      11. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.

      Note: Pennsylvania law requires incorporators (i.e., those people who file the paperwork) to be at least eighteen years old.

      Other Notable Requirements for Maintaining a Corporation in Pennsylvania
      • Pennsylvania requires certain documents to be kept at a corporation's principal place of business. The required documents are described in 15 Pa. Cons. Stat. § 1508 (link is to entire code, choose Title 15, Part II, Subpart B, Article B, Chapter 13, Subchapter A, and then locate the specific provision).
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Pennsylvania.
      • When you receive notification from the IRS that your "S" status has been approved, send a copy of this notification to the Pennsylvania Department of Revenue.
      • S corporations must file Form PA-20S (an information return) with the Department of Revenue every year.
      • While S corporations are not subject to corporate income tax in Pennsylvania, they are responsible for paying the capital stock tax, described above. As noted, most small online publishing operations probably will not have sufficient net worth or income to trigger the capital stock tax obligation, and in any event this tax will be phased out by 2011.
      Additional Steps and Information about Forming a Close Corporation
      • Pennsylvania law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
      • The articles of incorporation of a close corporation are slightly different from ordinary articles of incorporation. In Pennsylvania, you use the same fill-in-the-blank form used for ordinary articles of incorporation, but check the box for "Business-statutory close" at the top of the first page. Additionally, the form contains a required statement that the close corporation will not make any offering of its stock that would constitute a "public offering" for purposes of the federal securities laws.
      • In Pennsylvania, shareholders of a close corporation can adopt a bylaw that provides for the business and affairs of the corporation to be managed by the shareholders rather than by a board of directors. While this looks appealing, complex requirements apply to close corporations, and operating one generally requires that all or most of the shareholders enter into a shareholders' agreement. If you are interested in forming a close corporation, you should contact a lawyer.

      Jurisdiction: 

      Subject Area: 

      Forming a Corporation in Texas

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Texas. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Texas Secretary of State's website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • Texas law requires that a corporation name contain the word "company," "corporation," "incorporated," or "limited," or an abbreviation of one of those words. Additionally, your corporation name may not be the same as, or deceptively similar to, another name on file with the Secretary of State.
      • The Texas Secretary of State can provide a preliminary determination of business name availability. Call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to corpinfo@sos.state.tx.us.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Texas law, a corporation must have at least one director.
      • There is no minimum age requirement for directors.
      • Directors need not be residents of Texas or shareholders of the corporation, unless the certificate of formation or bylaws so require.
      • The certificate of formation must set forth the number of directors that will constitute the initial board of directors and provide their names and addresses. The bylaws should set forth the number of directors that will constitute the corporation's permanent board of directors, if that number is different from the number of directors in the initial board.

      3. Prepare and file a certificate of formation with the Secretary of State.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      • See the general section on forming a corporation for details. The Texas statute relating to issuance of stock certificates is located in Texas Bus. Orgs. Code § 3.202. Unless the certificate of formation states otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received in cash, property, or services) for each share of stock.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees in Texas (including corporate officers), you are subject to Texas employment taxes. You can register online using the Texas Employer Portal. For more information on being an employer in Texas, request a copy of the Employer Handbook.
      • Whenever you hire an employee in Texas, you must inform both the IRS and the State of Texas. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Texas Employer Portal.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Texas imposes a franchise tax on corporations. The rate is 1% of income. It is only collected from companies whose gross revenues are greater than $300,000. For more information, see the Revised Texas Franchise Tax page.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the certificate of formation, and a resolution identifying authorized signers if those names are not listed in the certificate. Here is one example of the documentation that banks ask for.
      Other Notable Requirements for Maintaining a Corporation in Texas Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Texas. There is no additional paperwork that must be filed with Texas to obtain "S" status.
      • S corporations are subject to Texas's franchise tax (discussed above).
      Additional Steps and Information about Forming a Close Corporation
      • Texas law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
      • The certificate of formation for a close corporation is different from an ordinary certificate of formation. In particular, it must include the sentence: "This corporation is a close corporation." Additionally, shareholders of a close corporation can enter into a shareholders' agreement that provides for the corporation to be managed by shareholders rather than a board of directors. If they choose to do so, the certificate of formation must set forth the names and addresses of the persons who, pursuant to the shareholders' agreement, will perform the functions of the initial board of directors.
      • Forming and operating a close corporation is complex. If you are interested in forming a close corporation, you should contact a lawyer. For more information, see the Close Corporation page on the Secretary of State's website.

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      Forming a Corporation in Virginia

      Steps to Create a Corporation

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Virginia. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Virginia State Corporation Commission, Office of the Clerk website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • Virginia law requires that a corporation name contain the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd." Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply).
      • You can check the availability of a corporate name by contacting the Clerk's Office of the Virginia State Corporation Commission at (804) 371-9733 or (866) 722-2551.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Virginia law, a corporation must have at least one director.
      • Virginia does not set a minimum age requirement for directors.
      • Directors need not be residents of Virginia or shareholders of the corporation, unless the articles of incorporation or bylaws so require.

      3. Prepare and file articles of incorporation with the State Corporation Commission of Virginia.

      • Note that the form asks you to list the name(s) and address(es) of the individual or individuals who will serve as the corporation's initial board of directors.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the state, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.
      • The bylaws should indicate the number of directors that will constitute the corporation's permanent board of directors, if that number is different from the number indicated in the articles of incorporation.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      • See the general section on forming a corporation for details. The Virginia statutes relating to issuance of stock certificates are located in Va. Code § 13.1-647 and Va. Code § 13.1-648. Unless the articles of incorporation state otherwise, the board of directors has the authority to set the "consideration" (i.e., the amount to be received in cash, property, or services) for each share of stock.

      7. Obtain any required local licenses.

      8. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees in Virginia (including corporate officers), you need to apply for a VEC (Virginia Employment Commission) account number. You can do this via the Online Services for Businesses website, which can also register you for other business taxes (if applicable).
      • Whenever you hire an employee in Virginia, you must inform both the IRS and the State of Virginia. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Virginia New Hire Reporting website.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Virginia's current income tax rate for corporations is 6% of Virginia taxable income.

      9. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
      Other Notable Requirements for Maintaining a Corporation in Virginia
      • Every year, the State Corporation Commission will mail the corporation's registered agent the Annual Assessment Packet. This packet contains a pre-printed Annual Report form and a notice of annual registration fee assessment. There is no filing fee for the Annual Report. The registration fee assessment depends on the number of shares the corporation is authorized to issue. For corporations authorized to issue 5,000 or fewer shares, the fee is $100. If your corporation is authorized to issue more than 5,000 shares, you should look at the fee schedule on the Annual Corporation Requirements page.
      • Va. Code § 13.1-774 requires Virginia corporations to make certain annual financial statements available to shareholders of the corporation upon request.
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Virginia. There is no additional paperwork that must be filed with Virginia to obtain "S" status.

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      Forming a Corporation in Washington

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in Washington. You should also read the general section on forming a corporation for information that is applicable in any state. Additionally, you should familiarize yourself with the Washington Secretary of State's website and the Department of Licensing website, which have useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • Washington law requires that a corporation name contain the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd." Additionally, your corporation name must be distinguishable from other names on file with the Secretary of State (limited exceptions apply), and may not contain any of the following words or phrases: "Bank," "banking," "banker," "trust," "cooperative," or any combination of the words "industrial" and "loan," or any combination of any two or more of the words "building," "savings," "loan," "home," "association," and "society," or any other words or phrases prohibited by any statute of the state.
      • Consult Access Washington for information on how to check the availability of your desired business name in Washington.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under Washington law, a corporation must have at least one director.
      • A director need not be a resident of Washington or a shareholder of the corporation, unless the articles of incorporation or bylaws require these qualifications.
      • Washington does not set a minimum age requirement for directors.
      • Either the articles of incorporation or the corporation's bylaws should set the number of directors that will make up the corporation's board of directors.

      3. Prepare and file articles of incorporation with the Secretary of State.

      4. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Secretary of State, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      5. Hold an organizational meeting.

      6. Issue stock certificates to the initial owners of the corporation.

      7. File a Business License Application with the Washington Department of Licensing.

      • Before filing out the Business License Application, get the Business Licensing Guide so that you will fill out the application correctly.
      • You can file the Business License Application by printing out the form and mailing it, applying online, or by visiting a business licensing office in person. The filing fee is $20, which is a processing fee of $15, plus $5 to register a trade name. If you filed formation papers with the Secretary of State, write the Unified Business Identifier (UBI) number that was given to you on your Business License Application.
      • The Business License Application lets you register a "trade name" for your business, which you need to do if you want to operate your business under a name other than that listed in the certificate of formation.
      • The Business License Application also lets you create a state employment account, which you need to do if you will have an employee or employees in Washington. You should not set up an employment account unless you plan to employ someone in the next 90 days.
      • Check your local county or city clerk's office for any additional licensing requirements.

      8. File an Initial Annual Report with the Secretary of State.

      • You need to file an Initial Annual Report within 120 days of filing the articles of incorporation. The filing fee is $10. If you file the articles of incorporation by mail, you will receive the Initial Annual Report form by mail from the state. If you file the articles online, you file the Initial Annual Report through the Online Application Forms page.

      9. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees in Washington, you need to set up a state employment account using the Business License Application (discussed above).
      • Whenever you hire an employee in Washington, you must inform both the IRS and the State of Washington. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Washington New Hire Reporting website.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Washington corporations must complete the state excise tax return, generally on a monthly or quarterly basis, and pay the business and occupation (B&O) tax. B&O taxes are assessed on gross revenue, regardless of whether the company makes a profit. Generally, if a business has gross revenue of less than $7,000 in a quarter, it will not have to pay B&O taxes that quarter, but it must still complete the excise tax return. The B&O tax rate is determined by type of business activity, with rates between 0.1 percent and 2.0 percent of gross revenue (most services are 1.5%). For more information, contact the Washington Department of Revenue at 1-800-647-7706.

      10. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
      Other Notable Requirements for Maintaining a Corporation in Washington
      • Washington corporations must file an annual report and license renewal with the Washington Department of Licensing every year after formation. The filing fee is $69, and you can file the report and renewal online.
      • Wash. Rev. Code § 23B.16.200 requires Washington corporations to make certain annual financial statements available to shareholders within four months of the end of the corporation's fiscal year or before the annual shareholders meeting (whichever is sooner). It also requires the corporation to furnish other financial statements upon request by a shareholder.
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with Washington. There is no additional paperwork that you must file with Washington to obtain "S" status.
      • S corporations are subject to the B&O tax (discussed above).

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      Forming a Corporation in the District of Columbia

      Here is an outline of the steps you need to follow in order to form a corporation (specifically, a "C corporation") in the District of Columbia. You should also read the general section on forming a corporation for information applicable in any state. Additionally, you should familiarize yourself with the Department of Consumer and Regulatory Affairs website, which has useful information and resources.

      1. Choose a business name for the corporation and check for availability.

      • District of Columbia law requires that a corporation name include the word "corporation," "company," "incorporated," or "limited," or an abbreviation of one of these words. Additionally, your corporation name may not be the same as, or deceptively similar to, the name of any other corporation on file with the Department of Consumer and Regulatory Affairs, and it may not indicate that the corporation is organized under an act of Congress.

      2. Recruit and/or appoint a director or directors for the corporation.

      • Under DC law, a corporation must have at least one director.
      • Directors do not have to be residents of the District or shareholders of the company, unless the articles so require.
      • There does not appear to be a minimum age requirement for directors, but incorporators (i.e., those filing the paperwork) must be at least eighteen years old.

      3. Prepare and file articles of incorporation with the Department of Consumer and Regulatory Affairs.

      • DC law requires that the articles of incorporations contain a clause stating that the company will not commence business until it has raised $1000 in capital.
      • DC law requires that the articles of incorporation state the number of directors that will constitute the corporation's board of directors and identify the individual or individuals who will serve as directors until the first annual meeting of shareholders.

      4. Raise $1000 in capital.

      • DC law is unique in requiring a corporation to raise $1000 in capital before commencing business or incurring any debt. This requirement does not stop a corporation or its owners from taking steps necessary to organize the corporation or to obtain subscriptions to or payment for its stock. This requirement does not apply to non-profit corporations, LLCs, and other unincorporated businesses in DC.

      5. Create the corporation's bylaws.

      • There is no set criteria for the content of bylaws, but they typically set forth internal rules and procedures for the corporation, touching on issues like the existence and responsibilities of corporate offices, the size of the board of directors and the manner and term of their election, how and when board and shareholder meetings will be held, who may call meetings, and how the board of directors will function. You are not required to file bylaws with the Department of Consumer and Regulatory Affairs, but the corporation should keep a copy at its principal place a business. For general information on corporate bylaws, please see the Corporate Bylaws page.

      6. Hold an organizational meeting.

      • After the Department of Consumer and Regulatory affairs issues the corporation a "certificate of incorporation" approving its articles, the initial directors must hold an organizational meeting for the purpose of adopting bylaws, electing officers, and transacting any other necessary business. Minutes of the meeting should be recorded. You can find the DC statute relating to the organizational meeting at D.C. Code Ann. § 29-302.05.

      7. Issue stock certificates to the initial owners of the corporation.

      8. Obtain any required local licenses.

      • The District of Columbia issues what is known as a Basic Business License (BBL) to new local businesses. The Department of Consumer and Regulatory Affairs website has a helpful Basic Business License Information page to help you determine whether you need a BBL.

      9. Determine what tax and other regulatory obligations the corporation has, and take care of any necessary registrations.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Register for District of Columbia business taxes using the FR-500 Combined Business Tax Registration service. This service will tell you what taxes you will be responsible for (including income and employment taxes), guide you to what forms you will need to file, and tell you when they must be filed.
      • Whenever you hire an employee in the District of Columbia, you must inform both the IRS and the District of Columbia. The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, on its page entitled Hiring Employees. Information on what to do on the District level will be detailed when you register for taxes using the FR-500 Combined Business Tax Registration service.
      • The District of Columbia's current income tax rate for corporations is 9.975%.

      10. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. A good way to do this early on is by opening a bank account for your corporation. You will probably need a Tax ID number (EIN), a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles.
      Other Notable Requirements for Maintaining a Corporation in the District of Columbia
      • DC corporations must file a Two-Year Report with the Department of Consumer and Regulatory Affairs every two years. The filing fee is $250. Note that the first such report is due April 1st of the first year after incorporation, with each subsequent report filed every two years thereafter.
      • DC law requires certain documents to be kept at a corporation's principal place of business. A list of the required documents is located in D.C. Code Ann. § 29-313.01.
      Additional Steps and Information about Forming an S Corporation
      • An S corporation has the same basic organizational structure as a regular corporation, but some of the tax advantages of a partnership or LLC. An S corporation pays no federal income tax, except for tax on certain capital gains and passive income. Instead, the corporation's profits and losses "pass through" to shareholders, and profits are taxed at individual rates on each shareholder's Form 1040. Certain requirements and additional obligations apply -- please see the S Corporation page for details.
      • To form an S corporation, designate "S" status with IRS via Form 2553 within 2 months and 15 days of filing your articles of incorporation with the Distrrict of Columbia. There is no additional paperwork that you need to file with DC.
      • The District of Columbia does not recognize the "S" status of a corporation and subjects S corporations to the same corporate state tax as other corporations. This does not mean, however, that you cannot designate your DC corporation an S corporation for federal tax purposes.
      Additional Steps and Information about Forming a Close Corporation
      • DC law has provisions relating to what is known as a "close corporation" -- a classification for a corporation with a small number of shareholders (thirty-five maximum) that does not issue stock to the general public. In general, running a close corporation permits a less formal management style under the auspices of a shareholders' agreement. Please see the Close Corporation page for details.
      • The articles of incorporation of a close corporation are different from ordinary articles of incorporation. The Department of Consumer and Regulatory Affairs has a sample articles of incorporation for a DC close corporation. Among other things, close corporation articles must contain:
      • A heading stating the name of the corporation and that it is a close corporation.
      • A provision stating that all of the corporation's stock, of all classes, is not to be held by more than thirty-five persons.
      • A provision stating that all of the corporation's stock is subject to certain transfer restrictions.
      • A provision stating that the corporation shall make no offering of any of its stock of any class which would constitute a "public offering" within the meaning of the United States Securities Act of 1933 (15 U.S.C. § 77a et seq.).
      • The articles may also include a provision stating that the corporation will be managed by its shareholders rather than a board of directors pursuant to D.C. Code Ann. § 29-305.42.
      • Running a close corporation generally requires a shareholders' agreement. This is an agreement among all or most of the corporation's shareholders, in which they agree to the relaxation of various corporate formalities, such as holding frequent shareholder and board meetings.
      • If you are interested in forming a close corporation, you should contact a lawyer.

      Jurisdiction: 

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      Forming a Nonprofit Corporation

      These are the general steps you need to follow in order to form a nonprofit corporation in compliance with local, state, and federal laws. For information specific to your state, please see State Law: Forming a Nonprofit Corporation.

      1. Preliminary Matters
      a. Your mission
      Take the time to write out a mission statement that identifies the societal need you wish to satisfy. Then outline how your nonprofit corporation will go about satisfying the need. See MinnPost.com for a terrific example of a mission statement in the context of online journalism.

      This may sound like a distraction at first, but do not underestimate its importance: you will return to this statement time and again throughout the process, whether in preparing your articles of incorporation or planning your fundraising activities. You need to be clear about why you are investing time, effort, and money into forming a nonprofit organization not only for yourself, but because clarity of vision will help attract others to your nonprofit organization, whether as directors, officers, employees, or donors.

      b. Figure out a fundraising plan
      501(c)(3) status not only gives your nonprofit corporation tax exemptions, but also makes the ability to raise money easier because donations are tax-deductible. You will need to have a plan on how to attract and collect donations. Refer to resources such as Network for Good and Nonprofit Good Practice Guide for information on fundraising plans and ideas.

      Remember that organizations that inspire confidence in donors are ones that:

      1. are able to communicate who they are and what they do

      2. define reasonable and attainable short-term and long-term goals

      3. show financial acumen in how to fulfill these goals

      4. can chart progress made toward the goals

      5. have programs that clearly speak to the organization's mission

      6. keep accurate and up-to-date accounting books and corporate records

      7. are professionally and efficiently run

      8. have 501(c)(3) status so that donations are tax-deductible


      c. Plan the annual budget

      You should create an operating budget for the upcoming year. An operating budget outlines your planned revenue and expenses, broken down by category. These categories include: personnel (salaries and benefits), administrative (computer equipment and office supplies), and fundraising (marketing and soliticing donations). Once you've incorporated, the board of directors has to authorize the annual budget. Plan the nonprofit corporation's finances for the year using resources such as Free Management Library, The Nonprofit Times, and Nonprofit Guides.

      This budget will be of immense help when applying for grant money or asking for donations as you will be able to show how you plan to use the funds. See Bush Foundation's Sample Budget.

      d. Reassess your decision to incorporate

      Now that you have a mission, a fundraising plan, and a budget, reassess your decision to incorporate. Ask yourself whether the ban on political and legislative activity frustrates your mission. If so, consider one of the other business types available. Also ask yourself whether your budget allows you to operate for a year, or whether you have the time to execute on your fundraising plan. If you feel a financial crush approaching, but still feel that your goal is to become a 501(c)(3) organization, perhaps starting out with a fiscal sponsorship may be best for you.

      2. Incorporate your Nonprofit Organization

      Most small nonprofit organizations incorporate in the state where they are operating. If you are thinking of something different, Findlaw has a good overview on choosing where to incorporate.

      Get in touch with your Secretary of State and request all the forms needed to incorporate as a nonprofit corporation. Additionally, ask whether you can get copies of any statutes on establishing and running a nonprofit corporation as they will be a valuable resource throughout this process. The State Law: Forming a Nonprofit Corporation section in this Guide has many state-level resources to help you in this process.

      a. Choose a business name for the corporation and check for availability.
      If you are currently operating under a business name, you may want to keep that name because it already identifies your business. However, you could also take this opportunity to change your organization's name to something more appropriate. Please see our section on choosing and checking the availability of a name for your non-profit organization, as well as our section on the trademark law aspects of choosing a name.

      Although the details vary based on state law, ordinarily the name of a nonprofit organization:

      i. must not be the same as that of another corporation on file with the state (substantially similar names will likely be rejected as well)

      ii. must contain the words "Corporation" or "Incorporated" or an abbreviation of one of these words ("Corp." or "Inc.")

      iii. must not contain words that suggest an association with certain specialized entities like the federal government (prohibited names include: "Federal," "National," or "United States") or a restricted type of business (prohibited names include: "Bank," "Lawyer," or "Doctor") or a special legal entity (prohibited names include: "Cooperative," "Reserve," or "Trust").

      Although you are not required to do so, you should consider registering your business name as a federal and/or state trademark. See Trademark for Business Naming for details.

      b. Recruit and appoint a director or directors
      The board of directors makes the major strategic and financial decisions for a nonprofit corporation, including appointing its officers. Some states require that directors be named in the articles of incorporation, while others allow the owners/incorporators (those filing the paperwork) to appoint directors at the initial organizational meeting. The minimum number of directors and any additional requirements for director eligibility varies based on state law. As you consider who you would like on your board, think about whether the potential director:
      • has demonstrated a commitment to your nonprofit organization's purpose
      • possesses good fundraising skills
      • is well-connected
      • has experience managing money
      There are a many strategic decisions to make here, which are beyond the scope of this Guide. You should consult with a nonprofit attorney and others experienced in this field about what kind of personalities you will want on your board, as well as setting an appropriate board size.
      c. Prepare and file articles of incorporation
      Refer to our section on Articles of Incorporation for Nonprofit Corporations on how to prepare articles for your nonprofit organization. You will want to file the document with the appropriate state office, usually the Secretary of State.

      There will be a filing fee, which generally ranges between $20 and $125 depending on the state. See the State Law: Forming a Nonprofit Corporation section for details on state filing fees.

      d. Create the bylaws
      Bylaws set out the details of how the business will be run, who will make what decisions, when decisions will be made, and so forth. It is important to think about the bylaws carefully because you will be expected to follow them. You are not required to file bylaws with a state office, but you should keep a copy at your principal place of business.
      e. Hold an organizational meeting
      The owners/incorporators, or the initial directors if named in the articles of incorporation, should hold an initial organizational meeting to:

      1. appoint directors (if not named in the articles)

      2. appoint corporate officers
      3. adopt the bylaws
      4. set the nonprofit corporation's budget for the fiscal year
      5. designate a bank
      6. select a corporate seal

      Someone present at the meeting should record minutes of the meeting, and the minutes should be stored at the nonprofit corporation's principal place of business.

      f. Keep a Records Book

      You will need to set up a records book to store all the important documents pertaining to your incorporation in one place.

      3. Get your Employer Identification Number

      You will need to apply for an Employer Identification Number, also known as EIN, from the IRS for your nonprofit corporation. You can apply for an EIN:

      • by submitting the required information online at the IRS website
      • by telephone at 1-800-829-4933 from 7:00 a.m. to 10:00 p.m. in your local time zone
      • by mailing or faxing Form SS-4, the Application for Employer Identification Number
      Instructions for Form SS-4 are available on the IRS website. The EIN is issued immediately once the application information is validated.

      You will also likely need to obtain a state employer identification number or account for tax purposes. See State Law: Forming a Nonprofit Corporation for details on state requirements.

      For general information on the tax obligations of corporations, including requirements relating to self-employment and employment taxes, see the Tax Obligations of Small Businesses section of this Guide.

      4. Apply for tax exemptions

      As with any corporation, a nonprofit corporation initially is subject to federal, state, and local taxes. You will have to apply for federal income tax exemption before being able to enjoy state and local tax exemptions.

      a. Federal Income Tax Exemption

      You will likely have to to apply to the IRS in order to become a tax-exempt organization under 501(c)(3) of the tax code. Refer to Applying for 501(c)(3) Tax Exemption for more on this process, and also see our detailed guide to the IRS's decision-making process for granting tax exemptions to journalism non-profits. There are many potential pitfalls in this process. We strongly recommend reviewing this guide before applying for an exemption.

      b. State Tax Exemptions

      Your state may impose taxes on your nonprofit corporation based on its net earnings. In some states you will receive state tax exemptions once you've filed your articles of incorporation and have gained 501(c)(3) tax exemptions from the federal government. In others, you will have to apply for state tax exemptions. Refer to our state guide for more information on how to obtain state tax exemptions.

      c. Local Tax Exemptions

      Your nonprofit organization may be exempt from paying property taxes on property it owns or leases. Such exemptions vary widely by location; check with the tax assessor of your local government (town or city hall, or the seat of county government) to find out how to apply for applicable exemptions.

      5. Other steps to take
      a. Register with your State's Attorney General
      One duty of a state's Attorney General is to oversee nonprofit organizations and ensure that they are in compliance with the law. As a result, some states require nonprofit organizations to register with the Attorney General's Office and send periodic reports on the allocation of the nonprofit organization's funds. Refer to our state guide for more information on the requirements of your state.
      b. Open a Bank Account for Your Business
      You should keep the nonprofit corporation's finances separate from your personal accounts. A good way to do this is by opening a bank account for your nonprofit corporation. You will probably need your EIN, a copy of the articles of incorporation, and a resolution identifying authorized signers if those names are not listed in the articles. Here is one example of the documentation that banks ask for.
      c. Obtain any required local licenses or permits
      As a business doing journalism, you are not required to obtain any federal or state licenses or permits relating to carrying on a particular trade. Most local or city governments, however, require every business to obtain a basic business license, sometimes called a tax registration certificate. You get this license from your city or county. The best way to get information about fees and procedures is to contact your county or city clerk's office or other local government authority. The local chamber of commerce and other small business owners might also be a good resource for information regarding local licenses and permits.
      d. Apply for a Nonprofit Postal Permit
      In general, 501(c)(3) nonprofit organizations qualify for significantly reduced postage rates for certain types of printed mail. In order to take advantage of these rates, you will have to apply for a nonprofit mailing permit from the U.S. Post Office using PS Form 3624.
      e. Insurance
      Obtain the appropriate insurance for your nonprofit corporation. You will probably need to take out new policy for the nonprofit corporation from organizations such as The Nonprofits Insurance Alliance Group, Nonprofit Insurance Services, First Nonprofit Insurance Company, and Riverport Insurance. Talk to a legal professional about what you need coverage for, and consider what you are willing to risk.

      Jurisdiction: 

      Subject Area: 

      State Law: Forming a Nonprofit

       

      Choose your state from the list below for state-specific information on forming a nonprofit organization:

      Forming a Nonprofit Corporation in Arizona

      Here are the steps to form a nonprofit corporation in Arizona. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with Title 10, Chapters 24 to 35 and Chapters 36 to 40 of the Arizona Revised Statutes (abbreviated here as “A.R.S.”).

      1. Choose a business name and check for availability

      • Your nonprofit corporation’s name must be distinguishable from the names of other Arizona corporations and certain other entities. A.R.S. § 10‑3401(B).

      2. Recruit and/or appoint directors

      • Every nonprofit corporation in Arizona must have a board of directors to exercise the powers of the corporation and manage its operation. A.R.S. § 10‑3801.
      • The board of directors must consist of at least one director for your nonprofit corporation. A.R.S. § 10‑3803.
      • Directors do not have to reside within Arizona, nor be a member of the nonprofit corporation. A.R.S. § 10‑3802.

      3. Determine your known place of business and your statutory agent

      • Every nonprofit corporation in Arizona must have a statutory agent. A.R.S. § 10‑3501. The statutory agent must be (a) an individual who resides in Arizona; (b) a domestic business or nonprofit corporation formed under A.R.S. Title 10; (c) a foreign business or nonprofit corporation authorized to transact business or conduct affairs in Arizona; (d) a limited liability company formed under A.R.S. Title 29; or (e) a limited liability company authorized to transact business in Arizona.  Id.
      • Every nonprofit corporation in Arizona must have a known place of business, which may be the address of the corporation’s statutory agent. Id. The known place of business must be a street address. A.R.S. § 10‑3202(A)(5).

      4. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Arizona Corporation Commission.

      • Every nonprofit corporation in Arizona must file an Annual Report with the State Corporation Commission and pay a $10 fee. A.R.S. § 10‑11622, § 10‑3122. The Annual Report can be filed electronically on the State Corporation Commission’s website. The State Corporation Commission does not send a reminder of the need to file an annual report. 

      b. Create the bylaws

      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures of the corporation. See A.R.S. § 10‑3206.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation’s principal office, known place of business, or the office of its statutory agent. A.R.S. § 10‑11601.

      c. Hold an organizational meeting

      d. Create a Records Book

      • You will need a records book to store the important documents of your nonprofit corporation.
      • See A.R.S. § 10‑11601 for specific information about record-keeping requirements under Arizona law. 

      5. Get your Employer Identification Number

      Whenever you hire an employee in Arizona, you must inform both the IRS and the state of Arizona.

      a. Federal

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees. 

      b. State

      • Arizona law requires employers in Arizona to use the “E-Verify” system (a free Web-based service offered by the federal Department of Homeland Security) to verify the employment authorization of all new employees hired after December 31, 2007. A.R.S. § 23‑214.
         
      • If you have an employee or employees to whom you page wages for services performed in Arizona, you must register complete the Joint Tax Application for employer withholding and unemployment insurance. You can do this via the Arizona Department of Revenue website (click on “License a New Business”), which you can also use to register for other business taxes (if applicable).

      6. Register with state offices

      a. Arizona Secretary of State

      • Before engaging in fundraising activities, you must register with the Arizona Secretary of State. A.R.S. § 44‑6552. You must also file an annual registration statement with the Arizona Secretary of State between September 1 and September 30 each year thereafter. Id.
      b. Department of Revenue 

      7. Apply for tax exemptions 

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions. 

      a. Federal

      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.

      b. State

      • All organizations exempt from federal income tax under section 501 of the Internal Revenue Code are exempt from Arizona income tax. A.R.S. § 43‑1201. See A.R.S. § 43‑1201 for further discussion of other entities exempt from Arizona income tax, including “[c]orporations organized and operated exclusively for religious, charitable, scientific, literary or educational purposes . . . [when] no part of the net earnings of which inures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation.
      • According to the Arizona Department of Revenue guide for nonprofit organizations, “[g]enerally, it is unnecessary to applyto the Department of Revenue for a letter confirmingexemption from state Income Tax.”
      c. Local 

       

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in California

      California uses the term nonprofit public benefit corporation to refer to the public charity nonprofit corporation that is the focus of this Guide. Here are the steps to form a nonprofit public benefit corporation in California. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with sections 5110 - 6910 of the California Corporations Code (abbreviated as "Cal. Corp. Code") and with the California Secretary of State's Business Portal.

      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • See the Name Availability section on the California Secretary of State's Business Portal for more details.

      2. Recruit and/or appoint directors

      • You must have at least one director for your nonprofit public benefit corporation.
      • You must state the number of directors in either the articles of incorporation or the bylaws of your nonprofit public benefit corporation.
      • Directors do not have to reside within California, nor do they have to be of a certain age.
      • Under California law, no more than 49 percent of a board of directors may be interested persons. An interested person is a director who provides nondirector services to the nonprofit public benefit corporation and is paid for the services rendered. The law also extends to cover any close relative of the director. For more information, see Cal. Corp. Code § 5227.

      3. Incorporate your Nonprofit Organization

      You should read the general discussion on how to Incorporate your Nonprofit Organization in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State
      • Read Cal. Corp. Code § 5130 for more information on how to construct your articles. For example, the statute requires the following statement:
      This corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for (public or charitable (insert one or both)) purposes.
      • You must file your articles of incorporation with Secretary of State's office. The filing fee is $30.

      b. Create the bylaws

      • California law requires bylaws for your nonprofit public benefit corporation.
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit public benefit corporation's principal place of business.
      c. Prepare and file a Statement of Information with the Secretary of State
      • A Statement of Information is a public disclosure of information concerning a business entity operating in California, including:

      i. a general description of what it does

      ii. the names and address of its officers

      iii. the address of its principal office

      iv. the name and address of an agent to accept the delivery of legal and tax documents on behalf of the business entity

      • The filing fee is $20.
      • You can also do this online at the Secretary of State's website which has a simple, fill-in-the-blank form for the Statement of Information. Instructions are included.

      d. Hold an organizational meeting

      e. Create a Records Book

      • You will need a records book to store important documents concerning your nonprofit public benefit corporation.

      4. Get your Employer Identification Number

      Whenever you hire an employee in California, you must inform both the IRS and the State of California.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State
      • If you will be paying at least $100 to employees in a quarter (including the president), you are subject to California employment taxes and must register for a California employer account number within 15 days of paying that $100.

      5. Register with the Office of the Attorney General

      Once your nonprofit corporation receives donations, you must submit the Initial Registration Form CT-1 in the next 30 days to the Registry of Charitable Trusts at the California Attorney General's Office.

      6. Apply for tax exemptions

      All business entities are taxed in a variety of different ways. Once you've incorporated as a nonprofit public benefit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • Apply for tax-exempt status in California by filing Form FTB 3500A, the Affirmation of Internal Revenue Code Section 501(c)(3), with the State of California Franchise Tax Board.
      • You will need to submit a copy of your federal determination letter if you have one.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Florida

      Here are the steps to form a nonprofit corporation in Florida. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with chapter 617 of the Florida Statutes (abbreviated as "Fla. Stat.") and with the Florida Department of State's Division of Corporations.


      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain the terms "corporation," "incorporated," or their abbreviations, but not the term "company."


      2. Recruit and/or appoint directors

      • You must have at least three directors, age eighteen or older, for your nonprofit corporation.
      • Directors do not have to reside within Florida, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State
      • Click here to view a sample article of incorporation for a Florida nonprofit corporation.
      • The filing fee is $35; the Designation of Registered Agent fee is $35.
      • Note that you must file an Annual Report with the Division of Corporations one year after your date of incorporation.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.


      4. Get your Employer Identification Number

      Whenever you hire an employee in Florida, you must inform both the IRS and the State of Florida.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State


      5. Register with state offices

      a. Division of Consumer Services
      • If you intend to solicit contributions from Florida public, you must register with the Division of Consumer Services annually.
      b. Department of Revenue
      • The Florida Department of Revenue has compiled a Start-Up Kit for New Business Owners that includes tax forms and brochures for each type of tax for which you will be responsible.


      6. Apply for tax exemptions

      All business entities are taxed in a variety of different ways. Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Georgia

      Here are the steps to form a nonprofit corporation in Georgia. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. Additionally, you should familiarize yourself with:


      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain either "corporation," "incorporated," "limited," "company," or their abbreviations.
      • Reserve your nonprofit corporation's name through the online Name Reservation system.


      2. Recruit and/or appoint directors

      • You must have at least one director, age eighteen or older, for your nonprofit corporation.
      • Directors do not have to reside within Georgia, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • The filing fee is $100.
      • When filing your articles of incorporation, you must also submit a Transmittal Information Form. This form certifies that you are filing articles of incorporation and will fulfill the publishing requirement explained in the next step.
      b. Publish a notice of intent to incorporate
      • Under Georgia law, you must publish a notice of intent to incorporate in a local newspaper.
      • Send $40 to the newspaper within a day of filing your articles of incorporation.
      • For more information on what the publication should look like, refer to the Secretary of State's Filing Procedures Guide.
      c. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      d. Hold an organizational meeting
      e. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.


      4. Get your Employer Identification Number

      Whenever you hire an employee in Georgia, you must inform both the IRS and the state of Georgia.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State


      5. Register with the state of Georgia

      a. Georgia Secretary of State
      • If your nonprofit corporation will accept and/or solicit donations you must register with the the Secretary of State Charitable Organizations department.
      b. Office of Secretary of State

       


      6. Apply for tax exemptions

      All business entities are taxed in a variety of different ways. Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • After you have received your tax exempt determination letter from the IRS, apply for state income tax exemption using Form 3605.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Illinois

      Here are the steps to form a nonprofit corporation in Illinois. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with chapter 805, act 105 of the Illinois Compiled Statutes (abbreviated here as "Ill. Comp. Stat.") and with the Illinois Secretary of State's Guide for Organizing Not-For-Profit Corporations.


      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • If the name implies that the corporation is for-profit, it must be followed by the letters "NFP."


      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within the state of Illinois, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • You must be at least eighteen years of age to be an incorporator in Illinois.
      • The filing fee is $50.
      • Click here for a sample articles of incorporation for a nonprofit corporation.
      • After you file your articles of incorporation, the Secretary of State will send you a certificate of incorporation. Within fifteen days of receiving this certificate, you must record both it and your articles of incorporation with the Office of the Recorder of Deeds in the county where your nonprofit corporation's registered office is located.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.


      4. Get your Employer Identification Number

      Whenever you hire an employee in Illinois, you must inform both the IRS and the state of Illinois.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State


      5. Register with the state of Illinois

      a. Office of the Attorney General
      • The filing fee is $15.
      b. Department of Revenue


      6. Apply for tax exemptions

      All business entities are taxed in a variety of different ways. Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • Once you obtain federal tax-exempt status, you do not need to file any paperwork with Illinois to qualify for state income tax exemption, and you do not need to file a state tax return.
      • Contact the Sales Tax Division with the Department of Revenue to see if you qualify for a state sales tax exemption.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Indiana

      Here are the steps to form a nonprofit corporation in Indiana. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with Title 23, Article 17 of the Indiana Code (abbreviated here as "Ind. Code"), and with the Indiana Secretary of State's Business Services Division.


      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain either "corporation," "incorporated," "limited," "company," or their abbreviations


      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within the state of Indiana, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State
      • The filing fee is $30.
      • Click here for a sample articles of incorporation.
      • Read Ind. Code § 23-17-3-1 for more information on how to construct your articles. For example, the statute requires the following statement:
      This corporation is a public benefit corporation.
      • Note that you must file an annual Business Entity Report with the Secretary of State. The filing fee is $10, and the form can be filled out online at the Indiana Secretary of State's website. The information required on the report is basic business information, such as the names of all directors and officers and the business's principal location.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.


      4. Get your Employer Identification Number

      Whenever you hire an employee in Indiana, you must inform both the IRS and the State of Indiana.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State


      5. Register with state offices

      a. Office of the Attorney General
      • However, you do not need to register your nonprofit corporation with the Indiana Attorney General's Office if your nonprofit corporation solicits on its own behalf.
      b. Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.

      b. State

      • Once you have received your determination letter from the IRS, file Form NP-20A with the Indiana Department of Revenue to obtain state corporate income tax exemption.
      • You must submit Form NP-20A to the Indiana Department of Revenue to apply for sales tax exemption.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Massachusetts

      Here are the steps to form a nonprofit corporation in Massachusetts. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with chapter 180 of the Massachusetts General Laws (abbreviated here as "Mass. Gen. Laws"), and with the Massachusetts Secretary of the Commonwealth's Corporations Division.

      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain either "corporation," "incorporated," "limited," or their abbreviations.

      2. Recruit and/or appoint directors

      • You must have at least one director for your nonprofit corporation.
      • Directors do not have to reside within the state of Massachusetts, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • You must be at least eighteen years old be an incorporator in Massachusetts.
      • The filing fee is $35.
      • Click here for a sample articles of incorporation.
      • Note that you will have to file an Annual Report with the Secretary of the Commonwealth one year after your date of creation. The filing fee is $15, and the information required on the report is basic business information, such as the names of all officers and directors and the business's principal location.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • Massachusetts law does not set forth specific record-keeping requirements for nonprofit corporations.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with the Commonwealth of Massachusetts

      a. Division of Public Charities at the Attorney General's office
      • If you plan to solicit donations from the public, you must get a Certificate of Solicitation from the Division of Public Charities at the Attorney General's office.
      • To get the certificate, you will need to file one of the two forms:

      Short Form PC - File a Short Form PC if you have not yet completed your first fiscal year and intend to solicit donations. The Short Form PC is intended to inform the Attorney General's office of your fundraising activities for the upcoming year.The filing fee for the Short Form PC is $50.

      Form PC - After your first fiscal year, you must file a regular Form PC on an annual basis. The Form PC serves to inform the Attorney General's office of the manner in which your nonprofit corporation conducts its solicitation of funds. The filing fee varies based on gross revenue starting at $35 for gross revenue under $100,000. You are exempt from this requirement if you are not going to raise more than $5000 per year, or if your contributions will come from ten or less individuals and all of your organization's functions will be performed by volunteers.

      b. Department of Revenue
      • You must register for taxes using the Massachusetts Department of Revenue's Business Registration page.
      • Refer to Massachusetts Department of Revenue's other publications for more information.

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • Once you have received your determination letter from the IRS you can apply to the Massachusetts Department of Revenue for a state income tax exemption.
      • Your nonprofit corporation may also be eligible for an exemption on state sales tax. Contact the Bureau of Sales Excise with the Department of Revenue for more information.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Michigan

      Here are the steps to form a nonprofit corporation in Michigan. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with chapter 45 of the Michigan Compiled Laws (abbreviated here as "Mich. Comp. Laws"), and with the Michigan Department of Licensing and Regulatory Affairs.


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • See the Department of Licensing and Regulatory Affairs's Name Availability resource for more information.

      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within the state of Michigan.
      • Directors may be sixteen or seventeen years old, but the nonprofit corporation then faces certain requirements on quorum and the articles of incorporation.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.
      a. Prepare and file articles of incorporation with the Secretary of State
      • You must file your articles of incorporation with the Michigan Secretary of State.
      • The filing fee is $20.
      • Click here for a sample articles of incorporation.
      • See the Michigan Secretary of State's Review Procedures manual for more detailed information on how to draft an articles of incorporation.
      • Note that you must file an Annual Report with the Secretary of State every two years after your date of creation. The filing fee is $20, and the information required on the report is basic business information, such as the names of all officers and directors and the business's principal location.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Michigan, you must inform both the IRS and the state of Michigan.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with state offices

      a. The Attorney General's office
      • You may need to obtain a Charitable Solicitation License from the Michigan Attorney General.
      • In general, a license is required if you raise more than $8000 per year and pay someone for fundraising services.
      b. Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.
      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • Once you receive your federal 501(c)(3) exemption your nonprofit corporation will automatically be exempt from the Michigan Single Business Tax (a tax that combines state corporate income taxes and certain other taxes into a single tax).
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in New Jersey

      Here are the steps to form a nonprofit corporation in New Jersey. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with:

      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain either "A New Jersey nonprofit corporation," "incorporated," or their abbreviations.

      2. Recruit and/or appoint trustees

      • Directors are known as "trustees" in New Jersey.
      • You must have at least three trustees, age eighteen or older, for your nonprofit corporation.
      • Trustees do not have to reside within the state of New Jersey.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation (referred to as a "Certificate of Incorporation" in New Jersey)

      • You must be at least eighteen years of age to incorporate in New Jersey.
      • The filing fee is $75.
      • A sample Certificate of Incorporation is available from the New Jersey Volunteer Lawyers for the Arts as part of their nonprofit guide for New Jersey artists and artisans (PDF). The sample Certificate appears in Appendix G to the guide at page 54. Note that this sample form is intended for an artists' organization, and might require modification to be suitable for a journalism organization.
      • Note that you must file an Annual Report with the Division of Revenue every year after your date of creation. The filing fee is $75, and the information required on the report is basic, such as the names of all officers and directors and the business's principal location.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      • Sample bylaws are available from the New Jersey Volunteer Lawyers for the Arts as part of their nonprofit guide for New Jersey artists and artisans (PDF). The sample bylaws appear in Appendix F to the guide at page 39. Note that this sample form is intended for an artists' organization, and might require modification to be suitable for a journalism organization.
      c. Hold an organizational meeting
      d. Create a Records Book
      • New Jersey law does not set forth specific record-keeping requirements for nonprofit corporations.
      • See records book to determine which documents of your nonprofit corporation to store at its principal place of business.

      4. Get your Employer Identification Number

      Whenever you hire an employee in New Jersey, you must inform both the IRS and the state of New Jersey.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with state offices

      a. The Attorney General's office
      • After your first fiscal year (and each year thereafter), if you have solicited more than $10,000 in donations that year or if you have paid someone for fundraising services, you must register with the New Jersey Charities Registration.
      • You can find forms and information about the registration process here.
      • The filing fee is based on the amount you have raised: $30 for amounts under $25,000 and topping off at $250 for amounts more than $500,000.
      b. Department of Revenue


      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in New York

      Here are the steps to form a nonprofit corporation in New York. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with:

      • Not-for-Profit Corporation Law in New York (abbreviated here as "N.Y. N.P. Corp. Law"); note that the link is to the entire code, so click on the "Not-for-Profit Corporation" link and then drill down to specific provisions


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Department of State (limited exceptions apply).
      • The name of your nonprofit corporation must contain one of the following words: "Corporation," "Incorporated," "Limited," or their abbreviations. See N.Y. N.P. Corp. Law §§ 301-302 for more information on all the naming requirements.
      • You can search for the availability of your proposed name by writing to the Department of State, Division of Corporations, 41 State Street, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a corporate name (or names) and list the name (or names) to be searched. There is a $5 fee for each name, which must accompany the request. Searching the availability of a corporate name does not reserve the name. You may also search the New York Corporation and Business Entity Database to help you identify names that have already been taken, but this database might not be complete.


      2. Recruit and/or appoint directors

      You must have at least three directors, eighteen or older, for your nonprofit corporation; for exceptions see N.Y. N.P. Corp. Law §701. Directors do not have to reside within the state of New York.


      3. Incorporate your Nonprofit Organization

      You should read the general discussion on how to Incorporate your Nonprofit Organization in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Department of State

      • Incorporators must be at least eighteen years of age.
      • Under New York law, Type B and Type C nonprofit corporations may be formed for 501(c)(3) purposes. Your articles of incorporation must state which type of corporation you are forming.
      • The filing fee is $75.
      • Click here for a sample articles of incorporation.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.
      4. Get your Employer Identification Number

      Whenever you hire an employee in New York, you must inform both the IRS and the state of New York.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with state offices

      a. New York Attorney General
      b. New York State Department


      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • File Form ST-119.2 for state and local sales tax exemptions. Contact the Sales Tax Information Center (1-800-698 2909) at the Tax Department for the form as it is not available online.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in North Carolina

      Here are the steps to form a nonprofit corporation in North Carolina. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with chapter 55A of the North Carolina General Statutes (abbreviated here as "N.C. Gen. Stat."), and with the North Carolina Secretary of State's Corporations Division. The division has a helpful publication: Incorporating Your Non-Profit in North Carolina, which you can download by scrolling to the section headed "Guidelines to Incorporating" and selecting the "Nonprofit Corporation".


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must contain either " corporation," "incorporated," "company," "limited," or their abbreviations. Search for a Corporation by Name to determine name availability.

      2. Recruit and/or appoint directors

      • You must have at least one director for your nonprofit corporation.
      • Directors do not have to reside within the state of North Carolina, nor to they have to be of a certain age.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation
      • You must file your articles of incorporation with the North Carolina Department of the Secretary of State Corporations Division by mail or in-person delivery.
      • The filing fee is $60.
      • Click here for a sample articles of incorporation.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Department of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.

      4. Get your Employer Identification Number

      Whenever you hire an employee in North Carolina, you must inform both the IRS and the state of North Carolina.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State


      5. Register with state offices

      a. N.C. Department of the Secretary of State Solicitation Licensing Section
      • However, if you receive less than $25,000/year in contributions, and you do not pay officers, directors, incorporators, fundraisers, or lawyers for their services, you need not apply for the license. See N.C. Gen. Stat. § 131F-3 for more information.
      • The license must be renewed annually.
      b. Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.

      b. State

      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Ohio

      Here are the steps to form a nonprofit corporation in Ohio. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with:

      Chapter 1702 of the Ohio Revised Code (abbreviated here as "Ohio Rev. Code"), The Ohio Secretary of State's Business Services, and The Legal Information for Nonprofit Corporations created by the Ohio State Bar Foundation and the Ohio Association of Nonprofit Organizations.

      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).


      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within Ohio, nor do they have to be of a certain age.
      • The Ohio Attorney General has a Guide for Board Members which explains the duties and responsibilities that directors owe to a nonprofit organization.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • The filing fee is $125.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation. See Ohio Rev. Code § 1702-15 for specific information about record-keeping requirements under Ohio law.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Ohio, you must inform both the IRS and the state of Ohio.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      b. State


      5. Register with state offices

      a. Ohio Attorney General
      • The filing fee depends on the nonprofit corporation's estimated contributions for the coming year.
      • The fee is waived for nonprofit corporations with estimates less than $25,000. The filing fee is $50 those with estimates between $25,000 and $100,000.
      b. Department of Revenue
      • You must register for state business taxes. The Ohio Business Gateway has information on your nonprofit corporation's tax responsibilities.


      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Pennsylvania

      Here are the steps to form a nonprofit corporation in Pennsylvania. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with:


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • While no terms are required for the name, there are prohibited terms.
      • See 15 Pa. Cons. Stat. § 5303 for more information (choose Title 15, Part II, Subpart C, Article B, Chapter 53, Subchapter A, § 5303).

      2. Recruit and/or appoint directors

      • You must have at least one director.
      • Directors must be at least eighteen or older.
      • Directors need not be residents of Pennsylvania unless the articles of incorporation or bylaws require otherwise.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • You must be at least age eighteen to be an incorporator in Pennsylvania.
      • The filing fee is $125.
      • Note that you will have to file an Annual Report with the Department of State by April 30th each year. There is no fee to file this report.
      b. File a Docketing Statement
      • When you file articles of incorporation, you must also file a Docketing Statement with the Department of State.
      • The docketing statement contains only basic information like the name and type of business organization and a description of business activities.
      • There is no fee to file this form.
      c. Fulfill the Commonwealth of Pennsylvania's "advertising requirement"
      • You must also publish a statement of your intent to file or the actual filing of the articles of incorporation in two newspapers of general circulation, one of which is a legal journal.
      • You will not need to send proof of advertising to the Department of State, but you should file the proof with the minutes of the corporation.
      • The advertisements must contain the name of the proposed corporation and a statement that the corporation is to be or has been organized under the provisions of the Pennsylvania Nonprofit Corporation Law (15 Pa. Cons. Stat. §§ 5301 et seq.).
      d. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      e. Hold an organizational meeting
      f. Create a Records Book
      • Pennsylvania law does not set forth specific record-keeping requirements for nonprofit corporations.
      4. Get your Employer Identification Number

      Whenever you hire an employee in Pennsylvania, you must inform both the IRS and the Commonwealth of Pennsylvania.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with state offices

      a. Pennsylvania Attorney General
      • If your organization receives more than $25,000 in contributions in a year or if your organization compensates any person for solicitation activities, you must register with the Department of State Bureau of Charities.
      • Registration must be performed within 30 days of receiving more than $25,000 as long as the nonprofit corporation's program service revenue does not equal or exceed $5,000,000.
      b. Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • File Form REV-72 with the Pennsylvania Department of Revenue, Tax Forms Service Unit.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Texas

      Here are the steps to form a nonprofit corporation in Texas. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with: Title 2, Chapter 22 of the Texas Business Organizations Code (abbreviated here as "Texas Bus. Orgs. Code"). The Texas Secretary of State's page on Nonprofit Organizations and Nonprofit FAQs may also be useful.


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The Texas Secretary of State can provide a preliminary determination of business name availability. Call (512) 463-5555, dial 7-1-1 for relay services, or e-mail your name inquiry to corpinfo@sos.state.tx.us.

      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within Texas, nor do they have to be of a certain age.


      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • The filing fee is $25.
      • Click here for a sample articles of incorporation.
      • Note that you will have to file a periodic report with the Office of the Secretary of State every four years after incorporation.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Texas, you must inform both the IRS and the state of Texas.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State

      5. Register with the Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Virginia

      In Virginia a nonprofit corporation is known as a nonstock corporation. Here are the steps to form a nonstock corporation in Virginia. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with Title 13.1, Chapter 10 of the Virginia Code (abbreviated here as "Va. Code"), and with the Business section of the Commonwealth of Virginia.


      1. Choose a business name and check for availability

      • Your nonstock corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • You can check the availability of a corporate name by contacting the Clerk's Office of the Virginia State Corporation Commission at (804) 371-9733 or (866) 722-2551.

      2. Recruit and/or appoint directors

      • You must have at least one director for your nonstock corporation.
      • Directors do not have to reside within the Commonwealth of Virginia, nor do they have to be of a certain age.

      3. Incorporate your Nonstock Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • You must file your articles of incorporation with the Office of the Clerk at the State Corporation Commission.
      • The filing fee is $75.
      • Click here for a sample articles of incorporation.
      • An Annual Assessment Packet will be mailed to your registered agent every year. You will need to complete the Annual Report form in the packet and send it back to the State Corporation Commission with the annual registration fee of $25.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonstock corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store the important documents of your nonstock corporation.
      • See Va. Code § 13.1-932 for specific information about record-keeping requirements under Virginia law.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Virginia, you must inform both the IRS and the Commonwealth of Virginia.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State
      • You must apply for an account number with the Virginia Employment Commission.

      5. Register with state offices

      a. Virginia Department of Agriculture and Consumer Services
      • Before engaging in fundraising activities, you must register with the Division of Consumer Protection at the Virginia Department of Agriculture and Consumer Services.
      b. Department of Revenue

      6. Apply for tax exemptions

      Once you've incorporated as a nonstock corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in Washington

      Here are the steps to form a nonprofit corporation in Washington. You should read this page in conjunction with the general section on forming a nonprofit corporation, which has additional steps listed that are applicable to all states. You should also familiarize yourself with Title 24 of the Revised Code of Washington (abbreviated here as "Wash. Rev. Code"), and with the Washington Department of Revenue's guide: Information on Washington's Tax Structure for Non-Profit Organizations.


      1. Choose a business name and check for availability

      • Your nonprofit corporation's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • The name must not contain either "incorporated," "company," "limited," or their abbreviations. See Wash. Rev. Code § 24.03.045 for more information.
      • Use the Washington Secretary of State's Corporations search system to determine name availability.

      2. Recruit and/or appoint directors

      • You must have at least one director for your nonprofit corporation.
      • Directors do not have to reside within the state of Washington, nor to they need to be of a certain age.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State

      • You must be eighteen to be an incorporator in the state of Washington. You must file your articles of incorporation with the Secretary of State.
      • Washington uses a simplified fill-in-the-box application for filing articles of incorporation.
      • The filing fee is $30.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation.

      4. Get your Employer Identification Number

      Whenever you hire an employee in Washington, you must inform both the IRS and the state of Washington.

      a. Federal
      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.
      b. State
      • This form registers the nonprofit corporation for taxes as well.
      • The filing fee is $20.
      • Once registered, you will receive a packet from the Department of Revenue that will contain a letter with your Unified Business Identifier ("UBI") and a Business Tax Guide.

      5. Register with the Secretary of State's Charities Division

      • If you plan to solicit donations from the public, you must register with the Secretary of State's Charities Division.
      • The initial registration fee is $20.
      • If you solicit more than $25,000 in a year or pay any person to conduct solicitation activities, you must renew this registration annually. The renewal fee is $10.

      6. Apply for tax exemptions

      Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.
      b. State
      • Washington has no state income tax.
      • However, nonprofit corporations are liable for business and occupation taxes.
      c. Local

      Jurisdiction: 

      Subject Area: 

      Forming a Nonprofit Corporation in the District of Columbia

      Here are the steps to form a nonprofit corporation in the District of Columbia. You should read this page in conjunction with the general section on forming a nonprofit corporation which has additional steps listed that may be applicable to the District. You should also familiarize yourself with:


      1. Choose a business name and check for availability

      • Your nonprofit's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (limited exceptions apply).
      • See Name Availability at the D.C. Department of Consumer & Regulatory Affairs for more details.

      2. Recruit and/or appoint directors

      • You must have at least three directors for your nonprofit corporation.
      • Directors do not have to reside within the District of Columbia, nor do they have to be of a certain age.

      3. Incorporate your Nonprofit Organization

      You should read the general section on forming a nonprofit corporation in tandem with the steps outlined here.

      a. Prepare and file articles of incorporation with the Secretary of State
      • You must have at least three incorporators, age eighteen or older, to form a nonprofit corporation in D.C.
      • Click here here to see a sample articles of incorporation for a D.C. nonprofit corporation.
      • The filing fee is $70.
      b. Create the bylaws
      • There are no set criteria for the content of bylaws, but they typically set forth internal rules and procedures.
      • You are not required to file bylaws with the Secretary of State, but you must keep a copy at the nonprofit corporation's principal place of business.
      c. Hold an organizational meeting
      d. Create a Records Book
      • You will need a records book to store important documents concerning your nonprofit corporation. See D.C. Code Ann. § 29-301.26 for specific information about record-keeping requirements under Washington D.C. law.

      4. Get your Employer Identification Number

      • Request an Employer Identification Number ("EIN") from the IRS. This can be done via an online application.
      • The IRS details all of the necessary steps to complete, including verifying work eligibility and withholding allowances certificates, in Hiring Employees.


      5. Register with the necessary government offices

      a. Department of Consumer & Regulatory Affairs
      • If you intend on engaging in charitable solicitation activities (fund-raising, grants, donations, etc.), you must obtain a Basic Business License.
      • To obtain an application for this license, email the BBL Info Center (bbl.infocenter@dc.gov) or calling them at (202) 442-4311.
      • The filing fee is $253.
      b. Office of Tax and Revenue
      • The service will inform you about your tax responsibilities and how to meet them.

      6. Apply for tax exemptions

      All business entities are taxed in a variety of different ways. Once you've incorporated as a nonprofit corporation, you can start applying for tax exemptions.

      a. Local
      • The D.C. Business portal recommends that you file for D.C. tax exempt status before getting your federal exemption because your exempt status starts on the date you file.
      • However, you will not actually be granted D.C. tax exemption until the IRS approves your federal application.
      • You will need to file Form FR-164 to apply for tax exemptions from the District.
      b. Federal
      • The IRS lists a series of questions to help you determine whether your organization is eligible for federal tax exemption.

      7. Obtain a Basic Business License

      • If you intend to engage in charitable solicitation activities (fundraising, grants, donations, etc.), you must obtain a Basic Business License.
      • Contact the BBL Info Center (email: bbl.infocenter@dc.gov; phone: (202) 442-4311) for information on how to apply for the license.

      8. Other Notable Requirements

      • You must file a Two-Year Report with the Department of Consumer and Regulatory Affairs every two years. Note that the first such report is due April 1st of the first year after formation, with each subsequent report filed every two years thereafter.
      • This report requires basic business information, such as the name of the corporation, the address of its principal office, the nature of its business affairs, and the names of high-level managers.
      • The filing fee is $75.

      Jurisdiction: 

      Subject Area: 

      Forming a Cooperative Corporation

      Not every state allows for the formation of journalism-oriented cooperative corporations. In those states which do have a cooperative form, the procedure for forming a cooperative often tracks the procedures for forming a regular for-profit corporation (or non-profit corporation, if you are forming a non-profit cooperative). However, in addition to the normal process of forming a corporation, cooperatives must also decide whether to permit uneven ownership interests in the cooperative, as well as how and when to issue "patronage dividends" to patrons of the cooperative to reduce federal (and possibly state) tax liability. See the Legal Guide section on Taxation of Cooperatives and "Patronage Dividends."

      The specific procedure for forming a cooperative can vary greatly from state to state, and you should review information specific to your state before attempting to form a cooperative there. The State Law: Forming a Cooperative Corporation section will help you determine whether a journalism cooperative can be formed in the states covered in this Guide and, if so, the process for doing so.

      Jurisdiction: 

      Subject Area: 

      State Law: Forming a Cooperative

      Please select a state below for more information about forming a journalism-oriented cooperative corporation in that state.  

      Please note that not every state recognizes the "cooperative corporation" as a specific business form, and that some states which recognize this form restrict the use of this form to industries other than journalism. The state pages listed below will inform you whether the state recognizes the form, and if so, whether a journalism organization can adopt that form.

      Note also that this section of the Guide is under development; new states will be added to our coverage in the future.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in California

      The California Corporations Code (often abbreviated as Cal. Corp. Code) governs corporations in California. The Consumer Cooperative Corporations Law ("cooperative law") governs consumer cooperative corporations (or simply "cooperatives"), and is found in Cal. Corp. Code Division 3, Part 2. You should familiarize yourself with Cal. Corp. Code sections 12200 to 12704, which comprise the cooperative law. You should also familiarize yourself with Cal. Corp. Code Division 1, which governs corporations in general. 

      Because the cooperative law is complex, you may wish to seek the assistance of an attorney if you decide to form a journalism cooperative in California. On this page, you will find general information about (1) choosing a name for your cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the articles of inforporation and bylaws for your cooperative; (5) registering as an employer with the IRS and the State of California for tax purposes; (6) submitting required forms to the state of California; and (7) tax information. 

      1. Choose a name for the cooperative and check for availability.

      2. Recruit and/or appoint directors and officers for the cooperative.

      • Determine the incorporators of the cooperative. The incorporators are those who participate in the forming of the cooperative, select initial board members and officers, and create the articles of incorporation. California requires at least one incorporator. The incorporator may be a natural person or a business entity. See Cal. Corp. Code §§ 12300, 12245.  
      • The incorporators then choose two groups of people: the initial board of directors, and the officers. The board of directors generally establishes policy and makes major decisions about the cooperative. The officers manage day-to-day operations of the cooperative. 
      • There must be at least three members of the board of directors. You may choose to have a larger board by specifying in their number in the cooperative's articles of incorporation or bylaws. The incorporators may serve on the initial board of directors. See Cal. Corp. Code § 12350, 12353. 
      • The officers must include at least a chairperson (of the board) or a president, or both, a secretary, and a chief financial officer. Initially, the incorporators, and later, the board of directors, may create other officer-level positions by providing for such positions in the articles of incorporation or bylaws. See Cal. Corp. Code § 12353. 

      3. Structure your cooperative.

      a. Determine the different levels of membership. 

      • Cooperatives may issue memberships for free, or charge for memberships at different levels as determined by the board of directors. See Cal. Corp. Code § 12400.
      • Cooperatives in California can create different classes of membership with different rights and responsibilities. Rules governing the different types of memberships in a cooperative may be set forth in the articles of incorporation or bylaws. See Cal. Corp. Code § 12420. 
      • Generally, California law states that each member entitled to vote gets only one vote in the cooperative. See Cal. Corp. Code §§ 12348, 12404. However, your articles of incorporation may set forth that some members will not have voting rights. Your cooperative may wish to deny voting rights for memberships purchased for relatively small amounts. 
      • A single membership in a cooperative may be shared by two or more individuals, or two or more business entities in a joint venture. Those sharing a single membership are entitled collectively to no more than a single vote. See Cal. Corp. Code § 12482 for more information about how votes by joint holders of a membership must be counted by your cooperative. 
      • The board of directors may decide to allow members to have different ownership interests in the cooperative, by issuing membership certificates reflecting members' relative capital contributions. See Cal. Corp. Code §§ 12240, 12401. However, each member still receives no more than one vote, as described above. References to the "shareholders" and "share certificates" of a cooperative have the same meaning as "members" and "membership certificates," respectively. See Cal. Corp. Code §§ 12247, 12248. 
      • You can choose to set different rules for whether and how memberships may be transferred, and may establish different rule for different classes of membership. See Cal. Corp. Code § 12410. 

      b. Decide on a management structure.

      • By default, the cooperative's board of directors exercises the powers of the cooperative, but you may limit to members those powers by in the articles of incorporation or bylaws. See Cal. Corp. Code § 12350. 
      • The cooperative has broad powers–to make contracts, hold property, sue and be sued, and so on. See Cal. Corp. Code § 12320 for a complete list of these powers. You should know that the powers of the cooperative are subject to limitations; for example, the power to distribute profits is limited by Cal. Corp. Code §§ 12451, 12543, and other applicable laws. 

      c. Decide how to distribute profits.

      1. Working Capital. Your cooperative may wish to retain profits as working capital to pay for expenses related to day-to-day operations.

      2. Investment Dividend. Your cooperative may also distribute profits in the form of payments to members based on their capital contributions to the cooperative (in a manner similar to a shareholder distribution in a regular corporation). California law requires cooperatives to limit such distributions to 15 percent of contributions to the capital of the cooperative in a fiscal year. See Cal. Corp. Code § 12451.

      3. Patronage Dividend. Patronage dividends must be distributed proporationately and equitably to members of the cooperative, or to other patrons, based on their patronage of the cooperative. See Cal. Corp. Code § 12201. Patronage dividends are based on based on transactions between the cooperative and members, and your cooperative may measure patronage by a member's use of both products and services furnished by the cooperative. See Cal. Corp. Code § 12243. Distributing patronage dividends can provide significant tax benefits at the federal level.

      4. Prepare your articles of incorporation and bylaws.

      • The articles of incorporation function as the basic governing document of the corporation. The articles of incorporation must state the name of the corporation, whether voting members' power and ownership interests are equal or unequal, and other information about the corproation. The articles of incorporation for a California cooperative must include the following statement:

      "This corporation is a cooperative corporation organized under the Consumer Cooperative Corporation Law. The purpose of this corporation is to engage in any lawul act or activity for which a corporation may be organized under such law." 

      See Cal. Corp. Code. § 12310 for a complete list of information that the articles of incorporation must include. 

      • The articles of incorporation may also include a statement describing or limiting the cooperative's purpose, and other information about the structure of the cooperative. See Cal. Corp. Code § 12312.  
      • The bylaws are a set of internal rules that govern most day-to-day activities and procdures of the cooperative. You may include in the articles of incorporation a provision allowing the directors to make or change to the bylaws. The directors cannot make certain changes to the cooperative, and some changes to the bylaws require approval by the members. See Cal. Corp. Code § 12340.
      • At your cooperative's first meeting, the initial board of directors will adopt the articles of incorporation and bylaws. The initial board of directors may also appoint officers during this meeting.

      5. Get your Employer Identification Number, register employees.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • If you have an employee or employees in California (including corporate officers), you will need to register for California withholding-payroll taxes using the California Employment Development Department employer registration page. If you have questions about business taxes, the California Employment Development Department has information available to employers on its website. The Payroll Taxes FAQ page is particularly useful.

      6. Register with the State of California.

      • You must submit your articles of incorporation and a $30 filing fee to the California Secretary of State's office in Sacramento. You may do this in person or by mail. Contact information for the California Secretary of State can be found here. 
      • You must also file a Statement of Information with the Secretary of State. This must be done within 90 days of submitting the articles of incorporation, and every year after the original Statement of Information is filed. 

      7. Tax information. 

      Note: The information contained on this page is meant for general, information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice. 

      Jurisdiction: 

      Forming a Journalism Cooperative in Florida

      Under Fla. Stat. §§ 618-619, Florida limits the formation of cooperative corporations to businesses in which people or associations are engaged in specific agricultural and related purposes. Therefore, you cannot form a journalism cooperative corporation in Florida. However, you may be able to form a business with aspects of a cooperative under another business form, such as an LLC, a corporation, or a nonprofit corporation. You should consult with an attorney for further information regarding your options for forming a business in Florida.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Georgia

      Georgia's law limits the creation of cooperative organizations to those involved in the production of agricultural products (see O.G.C.A. § 2-10-83). You would therefore not be able to form a journalism cooperative in Georgia. However, you may be able to form a journalism organization with certain aspects of a cooperative under another business form, such as an LLC, a partnership, a corporation, or a nonprofit corporation. You should consult with a Georgia attorney for further information regarding your options for forming a business in Georgia.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Illinois

      You should familiarize yourself with the Illinois Co-operative Act, 805 Ill. Comp. Stat. 310, which governs cooperative corporations. You may also wish to familiarize yourself with our page on forming a corporation in Illinois.

      Under 805 Ill. Comp. Stat. 310/1, Illinois permits the formation of a for-profit cooperative "for the purpose of purchasing of or selling to all shareholders and others, all sorts of groceries, provisions and any other articles of merchandise," which may include the product of a journalism organization. The statute also allows cooperative formation for those "who may be desirous of becoming interested in other like associations," which may be a catch-all provision that could include journalism associations.

      Illinois allows non-profit corporations to operate as cooperatives, see 805 Ill. Comp. Stat. 105/103.05(a)(26), but does not have a special corporate form for a non-profit cooperative. Instead, you must follow the general rules for forming an Illinois non-profit organization, and adapt the non-profit form to operate as a cooperative.  Note that unlike most non-profit organizations, a non-profit cooperative may include the word "cooperative" in its corporate name. See 805 Ill. Comp. Stat. 310/22.

      Because the cooperative law is complex, you may wish to seek the assistance of an attorney if you decide to form a journalism cooperative in Illinois (whether for-profit or non-profit). On this page, you will find general information about for-profit cooperatives in Illinois, (1) choosing a name for your cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the articles of incorporation and bylaws for your cooperative; (5) registering as an employer with the IRS and the State of Illinois for tax purposes; (6) submitting required forms to the state of Illinois; and (7) tax information.

      1. Choose a name for the cooperative and check for availability.

      2. Recruit and/or appoint directors and officers for the cooperative.
      • A cooperative must have at least five directors, each of whom is elected by the shareholders. See 805 Ill. Comp. Stat. 310/7.
      • The articles of incorporation must set forth the number of directors to be elected at the first meeting and identify the initial directors and incorporators by name and address. See 805 Ill. Comp. Stat. 310/1.
      • The officers shall include a president, one or more vice presidents, a secretary, a treasurer, and a manager. The secretary and treasurer positions may be combined into one position, the secretary-treasurer. See 805 Ill. Comp. Stat. 310/7.
      • Each of the officers, except the manager, may be a director of the cooperative.
      • The bylaws of a cooperative shall provide for the election, terms, and discharge of directors. But a majority of the shareholders may vote to remove any director or officer for cause and to fill the vacancy. See 805 Ill. Comp. Stat. 310/7.

      3. Structure your cooperative.

      a. Determine the different levels of membership/stock and issue shares.

      • The articles of incorporation (see below) must state the total number of shares that the cooperative has authority to issue and the number and class of shares to be issued before the cooperative commences business. See 805 Ill. Comp. Stat. 310/1.
      • A cooperative must issue shares and receive at least a total of $1,000 from all shareholders combined for the shares before commencing business. See 805 Ill. Comp. Stat. 310/1.
      • Cooperatives in Illinois can create different classes of membership with different rights and responsibilities. The articles of incorporation must set forth rules that govern the different classes of membership and the values of the shares. See 805 Ill. Comp. Stat. 310/1.
      • Unlike cooperatives in other states, where shareholders get one vote regardless of the number of shares they own, under Illinois law, each shareholder can own and control up to five shares. Those shares cannot have an aggregate value of more than $500. See 805 Ill. Comp. Stat. 310/9. If their cash value exceeds $500, the directors are authorized to hold the excess shares in a trust. See 805 Ill. Comp. Stat. 310/12.
      • Assignment and transfer of stock must be approved by a majority of the directors, but any person demanding assignment or transfer may appeal from the board of directors' action to the cooperative's members. The action of the members is final. See 805 Ill. Comp. Stat. 310/23.

      b. Decide how to distribute profits.

      • An Illinois cooperative must distribute profits in the form of patronage rebates to purchasers or sellers based on a percentage of purchases or sales; it may also issue dividends on shares of capital stock. See 805 Ill. Comp. Stat. 310/19.
      • The directors may choose what proportions of the cooperative's profits or earnings will be distributed to those entitled and when distribution will occur. Distributions must be made at least once in every twelve months. See 805 Ill. Comp. Stat. 310/15.
      • Cooperatives may, in their by-laws (see below), require dues of members, or another form of deposit of money with the cooperative. If a member fails to comply with a deposit requirement, the distribution received by that member must be reduced proportionally to the failure to comply. See 805 Ill. Comp. Stat. 310/15.

      4. Prepare your articles of incorporation and bylaws.

      • The articles of incorporation function as the basic governing document of the corporation. The articles of incorporation must state the name of the corporation, the corporation's purpose, and other information about the corporation. See 805 Ill. Comp. Stat. 310/1 for a complete list of information that the articles of incorporation must include. 
      • The articles of incorporation may also include provisions regarding the regulation of internal affairs of the corporation. See 805 Ill. Comp. Stat. 310/1. 
      • The bylaws are internal rules that govern most day-to-day activities and procedures. The bylaws for Illinois cooperatives must provide who is entitled to distributions, and they may provide procedures for subscriber voting and/or giving notice when a shareholder desires to sell his stock. See 805 Ill. Comp. Stat. 310/19, 310/12, 310/3.
      • Shareholders can adopt bylaws at any regular or special meeting called for that purpose. See 805 Ill. Comp. Stat. 310/24.

      5. Get your Employer Identification Number, register employees.

      6. Register with the State of Illinois.

      • You must submit your articles of incorporation and a $281.25 fee to the Illinois Secretary of State's office. You may do this in person, by mail, or online. However, business corporations with a specific purpose cannot be filed online, and business filed online will only have one class of stock. 
      • Contact information for the Illinois Secretary of State can be found here. 
      • Within 15 days after the Secretary of State completes filing procedures, you must file your articles of incorporation in the office of the recorder of the Illinois county in which the corporation's registered office is situated. See 805 Ill. Comp. Stat. 310/4.

      7. Tax information.

      • Cooperative corporations are taxed at the federal level in a special way. See our page on federal taxation of cooperatives for more information. 
      • All new business owners must register for business taxes with the Illinois Department of Revenue. For details, see the Tax Registration Page of the Illinois Business Portal.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Illinois's corporate income tax rate is 4.8% plus a 2.5% personal property replacement tax (7.3% total). It is not clear whether Illinois cooperatives receive deductions for patronage rebates similar to federal tax deductions. 
      • Illinois also imposes a franchise tax on corporations. The tax is based on the corporation's paid-in capital in Illinois. The initial franchise tax rate is 0.15% of paid-in capital in Illinois, and the minimum payment is $25. After a corporation's first year, the franchise tax is due annually at a rate of .10%, again with a minimum of $25.00.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Massachusetts

      Formation of a cooperative is a complex endeavor.  You should familiarize yourself with two provisions of the Massachusetts General Laws (often abbreviated as Mass. Gen. Laws): Chapter 157, particularly sections 1 and 2, dealing with the creation of for-profit cooperative corporations (or simply "cooperatives"); and Chapter 156B, which governs corporations in general. Where Chapter 157 and Chapter 156B conflict, Chapter 157 is controlling with respect to cooperatives.

      An additional layer of complexity is added by the fact that Chapter 156B was itself superseded for many purposes in 2004 by Chapter 156D of the General Laws. It is not presently clear whether references in Chapter 157 to Chapter 156B should be read to refer to the parallel provisions of Chapter 156D instead. If you have any questions about this process, you can contact the Corporations Division of Massachusetts Secretary of the Commonwealth's office; an attorney can also help you to interpret the relevant law.

      Note that Massachusetts has no separate non-profit cooperative form suitable for a journalism organization, although it might be possible to form a Massachusetts non-profit organization that operates in a cooperative manner.

      1. Choose a name for the cooperative and check for availability.

      • Your cooperative's name may not be the same as, or deceptively similar to, other corporate names on file with the Secretary of State (unless that other corporation gives written consent). See Mass. Gen. Laws ch. 156B, § 11 for more information about naming a corporation. 
      • You may, but are not required to, use the word "cooperative" in your cooperative's name as long as you abide by all of Chapter 157's rules for distributing a cooperative's profits. See Mass. Gen. Laws. ch. 157 § 8.

      2. Recruit and/or appoint directors and officers for the cooperative. 

      • Determine the incorporators of the cooperative. The incorporators are those who participate in the forming of the cooperative, select initial board members and officers, and create the articles of incorporation. Massachusetts law requires at least one incorporator. The incorporator may be a natural person or a business entity, but if a natural person must be at least 18 years old. 
      • The incorporators then choose two groups of people: the board of directors, and the officers. The board of directors generally establishes policy, makes major decisions, and chooses the officers after the incorporation phase. The officers manage the day-to-day operations of the cooperative. See Mass. Gen. Laws Ch. 156B, § 12.
      • If there are at least three stockholders in the cooperative, there must be at least three members of the board of directors. You may choose to have a larger board by specifying their number in the cooperative's bylaws. Mass. Gen. Laws Ch. 156B § 47.
      • The officers must include at least a president, treasurer, and clerk. The incorporators and, later, the board of directors may create other officer-level positions as well.

      3. Structure your cooperative.

      a. Determine the different levels of membership/stock. 

      • Cooperatives in Massachusetts can create different classes of stock with different rights and responsibilities. These rules are laid out in the cooperative's articles of incorporation. However, no stockholder in a cooperative gets more than one vote in the cooperative's operation, regardless of their number of shares held, and no stockholder can hold more than $1,000 (in par value) worth of stock. See Mass. Gen. Laws Ch. 157, § 2. 
      • Massachusetts law appears to allow the creation of different classes of stock, giving some classes voting rights and some not. See Mass. Gen. Laws Ch. 157, § 2: no stockholder can have "more than one" vote. You can, but are not required to, allow different classes of stock to vote on different issues, such as hiring decisions, editorial choices, etc. 
      • You can also require different financial commitments from different classes of stock. Different classes of stock can be sold at different prices. You can choose to require payment over time. See Mass. Gen. Laws Ch. 156B, § 22. 
      • You can choose to issue stock in exchange for cash, property, or services. In this way, you can give employees (reporters, editors, etc.) different classes of stock than financial contributors or other types of stockholders. See Mass. Gen. Laws Ch. 156B, § 18. As mentioned above, Massachusetts law appears to allow giving these different people different voting powers, privided that each holder of voting stock gets a single vote regardless of the number of shares held.
      • You can choose to set different rules for the transfer of different classes of stock. See Mass. Gen. Laws Ch. 156B § 13(b)(1). 
      • If you wish, you may leave the question of different classes of stock to be decided by the board of directors. See Mass. Gen. Laws Ch. 156B § 26.

      b. Decide on a management structure.

      • The cooperative has broad powers—to make contracts, hold property, sue and be sued, and so on. The complete list of these powers is found at Mass. Gen. Laws Ch. 156B, §9. Remember that these powers are subject to the requirements of Chapter 157; for example, the power to distribute profits is limited by Chapter 157, § 2.
      • By default, the board of directors exercises the powers of the cooperative, but you may limit those powers by using the articles of incorporation or the by-laws to reserve specific powers to the shareholders. Mass. Gen. Laws Ch. 156B, § 54.

      c. Decide how to distribute profits.

      Cooperatives in Massachusetts are limited in how they can distribute profits. See Mass Gen. Laws Ch. 157, § 2. 

      • Cooperatives must maintain a "sinking fund," a pool of money set aside to pay off long-term debts and obligations. Mass. Gen. Laws Ch. 157, § 2.
      • To fill this sinking fund, the cooperative must set aside at least 10% of its net profits each time it makes a distribution to shareholders. Once the fund has reached a minimum of 30% of the value of the cooperative's issued and outstanding stock, the cooperative can begin to distribute all of its net profits. 
      • Aside from the sinking fund requirement, you may choose to distribute profits as you wish (including both patronage dividends and shareholder dividends), but distributions must be made at least once a year.

      d. Prepare your articles of incorporation and bylaws

      • The articles of incorporation are the basic governing document of the cooperative. Basic information for the articles of incorporation includes the cooperative's name and purpose, the different classes of stock in the cooperative, and any rules or restrictions attaching to the stock classes. See Mass. Gen. Laws Ch. 156B, § 13 for the complete list of information you must include in your articles of incorporation.
      • The bylaws are a set of internal rules that govern most day-to-day activities and procedures of the cooperative. If you wish, you may include in the articles of incorporation a provision allowing the directors to make or change by-laws. If you choose to allow this, the stockholders still have the power to override the directors' changes. See Mass. Gen. Laws Ch. 156B, §17.
      • Copies of the articles of incorporation, bylaws, and other records should be kept at the cooperative's primary office (or the office of certain officers). Mass. Gen. Laws Ch. 156B, § 32.

      e. Hold an initial meeting.

      • The incorporator(s) then hold a meeting to elect the directors of the cooperative and adopt the articles of incorporation and bylaws. See Mass Gen. Laws Ch. 156B, § 12 for more information on the initial meeting.

      4. Get your Employer Identification Number, register employees.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Whenever you hire an employee in Massachusetts, you must inform both the IRS and the Commonwealth of Massachusetts. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Massachusetts New Hire Reporting Center website.

      5. Register with the Commonwealth of Massachusetts.

      • Submit your articles of incorporation to the Corporations Division of the Massachusetts Secretary of State's Office. The filing fees follow the standard for-profit schedule: $275.00 to file the articles of incorporation.

      6. Tax information.

      • Massachusetts, for tax purposes, generally treats corporations in the same way as the federal government. A for-profit journalism cooperative would likely file Form 355 for Massachusetts's corporate excise tax.
      Note: The information contained on this page is meant for general, information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in New Jersey

      New Jersey limits the formation of cooperative corporations to cooperative housing corporations, under the Cooperative Recording Act of New Jersey as codified at N.J. Stat. Ann. § 46:8D-1. Thus, you cannot form a journalism cooperative in New Jersey. However, you may be able to form another business entity in New Jersey with characteristics similar to a cooperative, such as an LLC, a corporation, or a non-profit corporation. You may wish to seek the assistance of an attorney in considering your options for forming a business in New Jersey.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in New York

      You should familiarize yourself with two chapters of the Consolidated Laws of New York: Chapter 77, which governs cooperative corporations, and Chapter 4, which governs business corporations. You may also wish to familiarize yourself with our pages on forming a corporation in New York. Where Chapters 77 and 4 conflict, Chapter 77 on Cooperative Corporations Law is controlling with respect to cooperatives. Chapter 4's references to the "shareholders" and "share certificates" have the same meaning as Chapter 77's "members" and "membership certificates," respectively. See N.Y. Coop. Corp. Law § 84. In addition, Chapter 4's sections on purchasing and payment for shares and voting in relation to shares do not apply to cooperatives. See N.Y. Coop. Corp. Law § 84.

      Note that the only form of journalism cooperative that is likely to be permitted under New York law is a worker cooperative operated for profit. See N.Y. Coop. Corp. Law §§ 13, 83. A worker cooperative is a cooperative that is formed, owned, and controlled by the business' workers with its membership entirely comprised of workers. A worker cooperative is formed when a corporation organized under the Business Corporation Law elects to be governed as a cooperative and states such in its articles of incorporation. This may occur when the corporation is formed or by amendment afterwards. See N.Y. Coop. Corp. Law § 82. Take care to review Article 5-A of the Cooperative Corporations Law, which focuses on worker cooperatives. 

      Alternatively, under N.Y. Coop. Corp. Law § 13, New York permits the formation of a cooperative "connected with the acquisition for its members of labor, supplies and articles of common use ... to be used or consumed by the members, their families or guests." Membership in such a cooperative would not be limited to workers. It is at least possible that the product of a journalism organization might be considered "labor, supplies [or] articles of common use," but the term appears to refer primarily to "livestock, equipment, machinery, food products, family or other household and personal supplies."

      Because the cooperative law is complex, you may with to seek the assistance of an attorney if you decide to form a journalism cooperative in New York. On this page, you will find general information about (1) choosing a name for the cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the articles of inforporation and bylaws for your cooperative; (5) registering the state of New York; (6) holding an organization meeting; (7) registering as an employer with the IRS and the State of New York; (8) tax information; and (9) maintenance requirements.

      1. Choose a name for the cooperative and check for availability

      • Please see our section on choosing and checking the availability of a name for your business, as well as our section on the trademark law aspects of choosing a name.
      • Your cooperative's name must be distinguishable from the names of other corporations, limited liability companies, and limited partnerships already on file with the Department of State. You can search for the availability of your proposed name by writing to the Department of State, Division of Corporations, 41 State Street, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a corporate name (or names) and list the name (or names) to be searched. There is a $5 fee for each name, which must accompany the request. Searching the availability of a corporate name does not reserve the name. You may also search the New York Corporation and Business Entity Database to help you identify names that have already been taken, but this database might not be complete.
      • There are a large number of words that cannot be included in the name without prior approval. For a full list, see N.Y. Bus. Corp. Laws § 301.
      • You must use the word "cooperative," "corporation," "incorporated," or "limited," or an abbrieviation thereof, in your cooperative's name. See N.Y. Coop. Corp. § 87.
      2. Recruit and/or appoint directors and officers for your cooperative. 
      • Determine the incorporators of the cooperative. The incorporators are those who participate in the forming of the cooperative, select initial members of the board of directors and officers, and create the articles of incorporation. All must be natural persons who are at least eighteen years old.  See N.Y. Bus. Corp. Laws §401.
      • The by-laws of a worker cooperative shall provide for the election, terms, classifications (if any), and removal of directors and officers. See N.Y. Coop. Corp. § 91.
      • A worker cooperative must have at least one director. Unless otherwise fixed in the bylaws, the number of directors constituting the board will be one.  See N.Y. Bus. Corp. Laws § 702.
      • Directors and officers need not be residents of New York or members of the cooperative, unless the certificate of incorporation or bylaws so require, except that at no time shall there be a majority of non-member directors, see N.Y. Coop. Corp. § 91, and the president and vice president(s) must be cooperative members that have been elected from the board of directors. See N.Y. Coop. Corp.  § 64.
      • The officers shall include a president, at least one vice president, a secretary, and a treasurer. The secretary and treasurer positions may be combined. See N.Y. Coop. Corp.  § 64.

      3. Structure your cooperative.

      a. Determine the different levels of membership/stock.

      • The cooperative's articles of incorporation shall establish qualifications for membership. After completing a probationary period (which you must define and set forth in the bylaws or articles of incorporation), each qualifying worker in a worker cooperative must be offered membership. Memberships are purchased upon payment of a fee and on such terms as are provided in the bylaws; in return for the fee, the worker is issued a membership share. Only members may own membership shares, and each member shall own only one such membership share. See N.Y. Coop. Corp. § 88.
      • Except as set forth below, only membership shares are given voting power in a worker cooperative. See N.Y. Coop. Corp. § 89. Each member is entitled to only one vote, regardless of patronage (see section 3.b, below), and voting by proxy is permitted except when otherwise stated in the bylaws. See N.Y. Coop. Corp. § 44. A cooperative may also provide for voting by delegates and/or by district in the bylaws. See N.Y. Coop. Corp. § 45.
      • A worker cooperative may also issue shares of stock to non-members in return for a capital investment, but non-member shareholders may only vote when there is an amendment to the articles of incorporation that would adversely affect them in accordance with N.Y. Bus. Corp. Laws § 804. See N.Y. Coop. Corp. § 89.
      • Shareholders in a worker cooperative otherwise have the same rights and responsibilities as shareholders of a corporation formed under the Business Corporation Law. See N.Y. Coop. Corp. § 88.

      b. Decide on a management structure.

      • The worker cooperative has broad powers–to form contracts, hold property, and so on. The complete lists of these powers are found at N.Y. Coop. Corp. §14 and N.Y. Bus. Corp. Laws § 202. You should know that the powers of the cooperative are subject to limitations stated in the Business Corporation Law and Cooperative Corporations Law.
      • By default, the board of directors exercises the powers of the cooperative, but you may limit those powers by using the articles of incorporation or the by-laws to reserve specific powers to members. See N.Y. Bus. Corp. Laws § 701. 

      c. Decide how to distribute profits.

      • Worker cooperatives shall specify the manner and times of apportioning and distributing proceeds in the certificate of incorporation or by-laws. Distribution may take the form of cash, credits, written notices of allocation, or capital stock issued by the worker cooperative. See N.Y. Coop. Corp. § 90.
      • Like cooperatives in most other states, a worker cooperative in New York may elect to distribute a portion of its profits as a "patronage dividend" (called a "patronage allocation" in New York) rather than as a stock dividend. Proceeds declared as patronage allocations must be distributed proportionately and equitably to members of the cooperative based on their patronage of the cooperative. See N.Y. Coop. Corp. § 90.
      • Unlike consumer-owned cooperatives, however, in a worker cooperative under the Cooperative Corporations Law, "patronage" means the amount of work performed as a member of the cooperative (as measured on terms set forth in the certificate of incorporation and by-laws). See N.Y. Coop. Corp. § 90. Nevertheless, the significant tax benefits at the federal level that are available to consumer cooperatives are also available to worker cooperatives that issue patronage allocations on the basis of work performed.

      4. Prepare your articles of incorporation and bylaws.

      • To form a worker cooperative, you must organize under the Business Corporation Law and state in your articles of incorporation (in accordance with Article IV of the Business Corporation Law) that you elect be governed as a cooperative. If you wish to transform a business corporation that already exists into a cooperative, you may amend the articles of incorporation to state this under Article VIII of the Business Corporation Law. See N.Y. Coop. Corp. Law § 82.
      • The articles of incorporation are the basic governing document of the cooperative. Basic information for the articles of incorporation includes the cooperative's name and purpose, the number of shares, and the "par value" of these shares. See N.Y. Bus. Corp. Laws § 402 for the complete list of information you must include in your articles of incorporation.
      • There is no set criteria for the content of bylaws, a set of internal rules that govern most day-to-day activities and procdures of the cooperative. Bylaws typically set forth internal rules and procedures for the corporation, including issues like the existence and responsibilities of offices, the size and qualifications of the board of directors and the manner and term of their election, and how the board of directors will function. You are not required to file bylaws with the Department of State, but the cooperative corporation must keep a copy at its principal place a business. See N.Y. Coop. Corp. §§14 and N.Y. Bus. Corp. Laws § 202.

      5. Register with the State of New York.

      • You must submit your a certificate of incorporation to New York's Department of State. There is a filing fee for the certificate of incorporation of $125, plus a minimum tax of $10 based on the amount of stock authorized in the certificate. The Department of State's website provides a fill-in-the-blank form for the certificate of incorporation.
      6. Hold an organization meeting.
      • After the corporate existence has begun, the incorporator(s) must then hold an organizational meeting to elect the initial directors of the cooperative and adopt the bylaws. You can find the New York statute relating to the organizational meeting at N.Y. Bus. Corp. Law § 404.
      • If there are multiple directors, the initial board of directors should be divided equally into three classes based terms of one, two, and three years. At the expiration of theses terms, the successors will be elected for three-year terms. See N.Y. Coop. Corp.  § 60.

      7. Get your Employer Identification Number, register employees.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Register for New York employment taxes. You can learn more about and register for employment taxes at the New York State Department of Taxation and Finance's Business Taxpayer Home Page.
      • If you have an employee or employees in New York (including officers), you must inform both the IRS and the State of New York. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information at the New York New Hire Home Page.
      • If you have employees in New York, you must carry workers' compensation insurance.

      8. Tax information. 

      • Cooperative corporations are taxed at the federal level in a special way. See our page on federal taxation of cooperatives for more information. 
      • For tax purposes, a worker cooperative corporation in New York must file reports and pay taxes according to Article 9 of the Tax Law that applies to Corporation Tax. Members of the cooperative are subject to Personal Income Tax under Article 22 of the Tax Law.
      • If your business is located or does any business in New York City, you may be subject to the NYC General Corporation Tax. For more information, see New York City Taxes.

      9. Other requirements for maintaining a cooperative corporation in New York.

      • All corporations in New York must file a Biennial Statement with the Department of Revenue every two years after the date of formation. The Biennial Statement is made on a form provided by the Department of State. For corporations, the Biennial Statement is automatically mailed to the address of the principal executive office or, if none is listed in the certificate, the form is mailed to the address for service of process. The Biennial Statement is mailed one month prior to its due date. The filing fee is $9. See N.Y. Bus. Corp. Laws § 408.
      • New York requires certain documents to be kept at a corporation's principal place of business. The required documents are described in N.Y. Bus. Corp. Laws § 624 (link is to entire code, you need to click on the Business Corporation section, then choose Article 6 and locate the specific provision).

      Note: The information contained on this page is meant for general information purposes only, and DMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The DMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Ohio

      You should familiarize yourself with Title XVII of  the Ohio Revised Code, particularly the Ohio Cooperative Law at Chapter 1729. Cooperative associations are considered non-profit organizations "because they are not organized for the purpose of making a profit for themselves as such, or for the purpose of making a profit for their members as such, but for their members as patrons." Despite this, Chapter 1729 rather than Chapter 1702 on Nonprofit Corporation Law governs. See Ohio Rev. Code Ann. § 1729.02.

      Because the cooperative law is complex, you may wish to seek the assistance of an attorney if you decide to form a journalism cooperative in Ohio. On this page, you will find general information about (1) choosing a name for the cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the articles of incorporation and bylaws for your cooperative; (5) registering with the state of Ohio; (6) registering as an employer with the IRS and the State of Ohio; (7) tax information; and (8) maintenance requirements. 

      1. Choose a name for the cooperative and check for availability

      2. Recruit and/or appoint directors and officers for the cooperative.

      • Determine the incorporators of the cooperative. The incorporators are those who participate in the forming of the cooperative, select initial board members and officers, and create the articles of incorporation. Ohio requires at least two incorporators (though a single-member cooperative is possible if the one member is itself an association that has at least two members). See Ohio Rev. Code Ann. §§ 1729.06 and 1729.18.
      • The incorporators then choose two groups of people: the initial board of directors, and the officers. The board of directors generally establishes policy and makes major decisions about the cooperative. The officers manage day-to-day operations of the cooperative. 
      • There must be at least five members of the board of directors elected by and from the cooperative's members, except that if the cooperative has less than five members, then the number of directors may equal the number of members. You may choose to have a larger board by specifying the number of directors in the cooperative's bylaws. The bylaws may provide for the appointment of directors by the other directors. The appointed directors do not need to be members of the association, but non-members cannot number more than one-fifth of the board of directors. See Ohio Rev. Code Ann. § 1729.22.
      • The officers must include at least a president, secretary, and treasurer. They may also include a chairperson and one or more vice chairpersons, one or more vice-presidents, and other officers as necessary. The chairperson and any vice chairperson of the board shall be a director. Unless otherwise specified by the articles of incorporation or bylaws, all officers shall be elected annually by the board of directors. See Ohio Rev. Code Ann. § 1729.26.

      3. Structure your cooperative.

      a. Determine the different levels of membership. 

      • The cooperative's bylaws shall establish qualifications for membership. Both individuals and business entities are eligible for membership. The bylaws may also establish membership fees. See Ohio Rev. Code Ann. § 1729.14.
      • Cooperatives in Ohio can create different classes of stock with different rights and responsibilities. These rules are laid out in the cooperative's articles of incorporation. See Ohio Rev. Code Ann. § 1729.07. Cooperatives can create both membership and patronage stock. Membership stock means any class of stock, continuous ownership of which is required for membership in the cooperative. Patronage stock means any stock that was originally issued by the cooperative with respect to patronage transactions; it is essentially a patronage dividend paid in the form of stock. See Ohio Rev. Code Ann. § 1729.01.
      • Each member of the cooperative is entitled to one vote, unless the articles of incorporation or bylaws specify an alternate voting method. They may permit: voting by members in accordance with the amount of business done with or through the association; voting by delegates voting by a certain subset of members; or voting by any combination of these methods or any other method of voting, provided the cooperative is controlled by the members. See Ohio Rev. Code Ann. § 1729.17. The bylaws may specify voting methods, limitations on voting rights, the right of members to vote by proxy or by ballot, and the the number of members constituting a quorum. See Ohio Rev. Code Ann. § 1729.14.

      b. Decide on a management structure.

      • The cooperative association has broad powers–to form contracts, hold property, sue and be sued, and so on. The complete list of these powers is found at Ohio Rev. Code Ann. § 1729.03.
      • By default, the board of directors and officers exercise the powers of the cooperative, but you may limit those powers by using the articles of incorporation or the by-laws to reserve specific powers to members. See Ohio Rev. Code Ann. § 1729.22.

      c. Decide how to distribute profits.

      • Cooperatives in Ohio may choose to pay dividends annually on its capital stock. Less any reserves provided for in the bylaws, all of the association's other income must be distributed in the form of membership dividends and/or patronage dividends in the manner provided for by the bylaws. See Ohio Rev. Code Ann. § 1729.13.

      4. Prepare your articles of incorporation and bylaws.

      • The articles of incorporation are the basic governing document of the cooperative.  Basic information for the articles of incorporation includes the cooperative's name and purpose(s), the names and addresses of the incorporators and initial directors, and if the cooperative is organized with capital stock, the number of shares and "par value" of these shares. See Ohio Rev. Code Ann. § 1729.07 for the complete list of information you must include in your articles of incorporation.
      • There is no set criteria for the content of bylaws, a set of internal rules that govern most day-to-day activities and procedures of the cooperative. Bylaws typically set forth internal rules and procedures for the corporation, including issues like number, qualifications, compensation, duties, and terms of office of directors and officers; time, place, and manner of calling and conducting meetings; and membership qualifications or conditions. See Ohio Rev. Code Ann. § 1729.14.
      • At your cooperative's first organizational meeting, the initial board of directors will adopt the articles of incorporation and bylaws. The initial board of directors may also appoint officers during this meeting.
      • Unless the articles or bylaws place the power in a supermajority vote of the board, after theses initial bylaws are adopted, bylaws may only be adopted and amended by a majority vote of the cooperative's members. See Ohio Rev. Code Ann. § 1729.16.

      5. Register with the State of Ohio.

      6. Get your Employer Identification Number, register employees.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee. 
      • Whenever you hire an employee in Ohio, you must inform both the IRS and the State of Ohio. You can find details of all the necessary steps, including verifying work eligibility and withholding allowances, on the Hiring Employees section of the IRS website. You can find state-level information on reporting new hires at the Ohio New Hire Reporting Center.
      • If you have an employee or employees in Ohio, you need to obtain workers’ compensation coverage or be granted the privilege of self-insurance for liabilities. The Ohio Bureau of Worker's Compensation administers the program.

      7. Tax information.

      • Cooperative corporations are taxed at the federal level in a special way. See our page on federal taxation of cooperatives for more information. 
      • If you have an employee or employees in Ohio (including corporate officers), you need to register for Ohio employment taxes using the Ohio Business Gateway. Though Ohio generally treats cooperatives like non-profit organizations, this treatment does not extend to state taxes. It is not clear if Ohio permits a tax deduction for patronage rebates/dividends similar to that at the federal level.

      8. Maintenance Requirements.

      Note: The information contained on this page is meant for general information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice. 

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Pennsylvania

      You should familiarize yourself with four chapters of the Consolidated Statutes of Pennsylvania: Title 15, Chapter 71, which is Pennsylvania's Cooperative Corporation Law of 1988 and governs cooperative corporations generally; Chapter 5, which relates to corporations; Chapter 1, which relates to general provisions; and Chapter 77, which governs workers' cooperative corporations. You may also wish to familiarize yourself with our pages on forming a corporation in Pennsylvania.

      Under Chapter 71, a cooperative can be formed in Pennsylvania by "setting forth in its articles a common bond of membership among its shareholders or members by reason of occupation, residence or otherwise."As you will see below, the Pennsylvania formation laws for a for-profit cooperative and a nonprofit cooperative are largely parallel to the Pennsylvania laws governing the formation of for-profit corporations and nonprofit corporations. Therefore you may follow the Pennsylvania corporation formation laws except in areas where the law differentiates between the formation of a corporation and cooperative, which are detailed below.

      Although Chapter 71 governs cooperative formation generally, it may also be possible to form a journalism cooperative under Pennsylvania law as a worker cooperative. See 15 Pa. Cons. Stat. § 77. A worker cooperative is a cooperative that is formed, owned, and controlled by the business' workers, with its membership entirely comprised of those workers. Under 15 Pa. Cons. Stat. § 7703, Pennsylvania permits the formation of a workers' cooperative by "five or more farmers, mechanics, laborers or other persons who have incorporated themselves together . . . for the purpose of carrying on agricultural . . . or commercial business; for the purpose of manufacturing, . . . merchandise, chattels, . . . ." It is possible that the product of a journalism organization might be considered a "commercial business." Because the cooperative law is complex, you may with to seek the assistance of an attorney if you decide to form a workers' journalism cooperative in Pennsylvania.

      On this page, you will find general information about (1) choosing a name for the cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the articles of incorporation and bylaws for your cooperative; (5) advertising for your cooperative; (6) registering in the state of Pennsylvania; (7) holding an organization meeting; (8) registering as an employer with the IRS and the State of Pennsylvania; (9) tax information; and (10) maintenance requirements.

      1. Choose a name for the cooperative and check for availability

      2. Recruit and/or appoint directors and officers for your cooperative.

      3. Structure your cooperative.

      a. Determine the different levels of membership/stock.

      • The cooperative's articles of incorporation shall establish qualifications for membership in the cooperative, indicating a common interest among the members based upon their occupation, residence or other factors. See 15 Pa. Cons. Stat. § 7102(a).
      • Each member of a for-profit cooperative corporation in Pennsylvania will generally have one vote, regardless of the number of shares held. See 15 Pa. Cons. Stat. § 7111. 
        • Pennsylvania recognizes a limited number of exceptions to this rule which likely would not apply to a journalism cooperative, including cooperatives organized based upon the members' respective interests in real property, market shares, useful property, or cooperative activity. If the cooperative corporation is organized in one of these interests, the articles of the cooperative may allow voting according to those interests. You should seek counsel from an attorney if you want to apply these exceptions to your cooperative. See 15 Pa. Cons. Stat. § 7111.
      • For a non-profit cooperative, members may be required to sign a contract, which must be filed with the Department of State. See 15 Pa. Cons. Stat. §§ 7122, 7123. The contract may require a cooperative member to:
      1. Sell, market or deliver products produced or to be produced to the corporation;
      2. Give authorization to the corporation to act on the member's behalf with respect to the products produced or to be produced;
      3. Buy or procure goods or services from ot through the corporation; and
      4. Give authorization to act on the member's behalf with respect to the procurement of goods or services. See 15 Pa. Cons. Stat. § 7121.
      • The filing procedures for a non-profit membership contract are complex, and as such, you may with to seek the assistance of an attorney if you decide to form membership contracts for a non-profit cooperative corporation in Pennsylvania. See 15 Pa. Cons. Stat. §§ 7122, 7123.
      • For more information on how to determine the different levels of membership/stock for your for-profit cooperative, see our page on How to Form a Corporation in Pennsylvania.
      • For more information on how to determine the different levels of membership for your nonprofit cooperative, see our page on How to Form a Nonprofit Corporation in Pennsylvania.

      b. Decide how to distribute profits.

      • A cooperative corporation in Pennsylvania may issue patronage rebates or dividends, or other distributions to its members or patrons, "in conformity with the purposes for which it is incorporated." See 15 Pa. Cons. Stat. § 7112. See our general page on patronage dividends for more information.
      • Pennsylvania law does not recognize "a patronage rebate or dividend that is, or is equivalent to, a reduction in the charge made by a cooperative corporation for goods or services" as a rebate or dividend under any other provision of the law. See 15 Pa. Cons. Stat. § 7112. Although the meaning of this rule is not entirely clear, this suggests that a member discount given to a member at the time of sale is not a rebate for which a tax deduction may be taken under the special rules for taxing cooperatives (see below). 

      4. Prepare your articles of incorporation and bylaws.

      • To form a cooperative, you must identify in your articles of incorporation the criteria for membership, as discussed above. You must also state that you are forming a cooperative corporation. See 15 Pa. Cons. Stat. § 7102.
      • A for-profit corporation or a nonprofit corporation can be converted into a cooperative corporation under Pennsylvania law. See 15 Pa. Cons. Stat. §§ 7104, 7106.
      • Conversion of a nonprofit corporation can occur when an existing non-profit organization elects to adopt a plan of conversion and files articles of amendment; the plan of conversion must be approved by 2/3 of the votes cast by all shares of each class of shareholders. See 15 Pa. Cons. Stat. § 7106.
      • Conversion of a for-profit corporation has similar procedural requirements to conversion of a non-profit corporation; a for-profit must also give dissenting shareholders who objects to the conversion the rights and remedies of dissenting shareholders. See 15 Pa. Cons. Stat. § 7104.
      • For more information on how to prepare your articles of incorporation and bylaws for your for-profit cooperative, see our page on How to Form a Corporation in Pennsylvania.
      • For more information on how to prepare your articles of incorporation and bylaws for your nonprofit cooperative, see our page on How to Form a Nonprofit Corporation in Pennsylvania.

      5. Advertise.

      • If you are forming a for-profit cooperative, you will need to publish a statement of your intent to file or the actual filing of the articles of incorporation in two newspapers of general circulation, one of which is a legal journal. For more on how to advertise for your for-profit cooperative, see our page on How to Form a Corporation in Pennsylvania.
      • You do not need to advertise if you are forming a non-profit cooperative.

      6. Register with the State of Pennsylvania.

      7. Hold an organization meeting.

      8. Get your Employer Identification Number, register employees.

      9. Tax information.

      • Cooperative corporations are taxed at the federal level in a special way. See our page on federal taxation of cooperatives for more information.
      • As a small business owner or employer, there may be other informational returns that you have to file annually or semi-annually with the IRS. For more information, take a look at the IRS Guide To Information Returns.
      • Pennsylvania's corporate tax is comprised of a corporate income tax and a capital stock tax. The net income tax is collected at a rate of 9.99%. The capital stock tax is somewhat complicated, determined by first adding net income divided by .095 to net worth multiplied by .75 (NI/.095 + .75*NW). If the number you get is less than $300,000, you do not owe capital stock tax. If the number you get is greater than $300,000, the tax will amount to .389% (.00389) of all dollars over $300,000. The capital stock tax is being phased out and will no longer be in effect starting in 2011. Most small online publishing operations probably will not have sufficient net worth or income to trigger the capital stock tax obligation.
      • It is not clear whether Pennsylvania cooperatives receive state tax deductions similar to the federal tax deduction for patronage rebates.

      10. Other requirements for maintaining a cooperative corporation in Pennsylvania.

      • The Pennsylvania laws governing formation of for-profit and nonprofit corporations, and therefore cooperatives, each have their own maintenance requirements. These include things like setting up a bank account for your business and keeping certain documents at the corporation's place of business. 
      • For information on other requirements for maintaining a cooperative corporation in Pennsylvania for your for-profit cooperative, see our page on How to Form a Corporation in Pennsylvania.
      • For information on other requirements for maintaining a cooperative corporation in Pennsylvania for your nonprofit cooperative, see our page on Forming a Nonprofit Corporation.

      Note: The information contained on this page is meant for general information purposes only, and DMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The DMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

      Jurisdiction: 

      Subject Area: 

      Forming a Journalism Cooperative in Texas

      You should familiarize yourself with two sections of Texas Business Organizations Code (abbreviated here as "Texas Bus. Orgs. Code"): Chapter 251 on Cooperative Associations and Title 1 on General Provisions. Where these sections conflict, Chapter 251 is controlling with respect to cooperatives. See Texas Bus. Orgs. Code § 1.106.

      Because the cooperative law is complex, you may wish to seek the assistance of an attorney if you decide to form a journalism cooperative in Texas. On this page, you will find general information about (1) choosing a name for your cooperative; (2) recruiting directors and officers for your cooperative; (3) structuring your cooperative; (4) preparing the certificate of formation and bylaws for your cooperative; (5) registering the state of Texas; (6) holding an organization meeting; (7) registering as an employer with the IRS and the State of Texas; (8) tax information; and (9) maintenance requirements. 

      1. Choose a name for the cooperative and check for availability.

      2. Recruit and/or appoint directors and officers for your cooperative. 

      • Determine the organizers of the cooperative. The organizers are those who participate in the forming of the cooperative, select initial board members and officers, and create the articles of incorporation.  See Texas Bus. Orgs. Code  § 3.004.
      • The organizers then choose two groups of people: the initial board of directors, and the officers. The board of directors generally establishes policy and makes major decisions about the cooperative. The officers manage day-to-day operations of the cooperative. 
      • There must be at least five members of the board of directors elected by and from the cooperative's members. You may choose to have a larger board. The certificate of formation must set forth the number of directors that will constitute the initial board of directors and provide their names and addresses. The bylaws should set forth the number of directors that will constitute the corporation's permanent board of directors, if that number is different from the number of directors in the initial board. See Texas Bus. Orgs. Code  § 251.101.
      • The board of directors shall annually elect (unless the bylaws provide otherwise) a president, at least one vice president, a secretary, and a treasurer. The secretary and treasurer positions may be combined. See Texas Bus. Orgs. Code  § 251.102.
      • The by-laws of a cooperative association shall provide for the election, terms (not to exceed three years), and removal of directors and officers. See Texas Bus. Orgs. Code §§ 251.101-251.103.
      • The Texas Business Organizations Code does not impose any age or residency requirements on who can be an organizer, director, or officer in a business entity, though requirements may be specified the certificate of formation or bylaws.

      3. Structure your cooperative.

      a. Determine the different levels of membership/stock.

      • The cooperative's certificate of formation or bylaws shall establish qualifications for membership. A person, an unincorporated group or other person organized on a cooperative basis, or a nonprofit group may be eligible for membership. See Texas Bus. Orgs. Code § 251.151.
      • Texas permits the purchase of shares in a cooperative by "subscription," i.e., pursuant to an agreement to purchase shares. See Texas Bus. Orgs. Code § 1.002. Cooperative associations in Texas may enter into a subscription agreement with a person who is eligible for membership under Section 251.151 and legally obligated to purchase a share or membership in the cooperative association. The cooperative's certificate of formation or bylaws may state whether and the conditions under which subscribers may be granted voting and membership rights. See Texas Bus. Orgs. Code § 251.153.  Status as a "subscriber" may be relevant if a patron to whom a patronage dividend is issued is also a subscriber who owes money to the cooperative pursuant to a subscription agreement (see Section 3.c, below).
      • A cooperative may only issue shares and membership certificates once any par value of the certificate has been paid in full. See Texas Bus. Orgs. Code § 251.201.
      • Cooperatives in Texas adhere to the "one-member-one-vote" rule. The only exception to this rule is when another cooperative association is a member of the cooperative, in which case the voting rights of the member cooperative may be prescribed by the certificate of formation or bylaws of the primary cooperative association. See Texas Bus. Orgs. Code § 251.254. A member may not vote by proxy, but may vote by mail or delegates if the cooperative's certificate of formation or bylaws contain the procedures for such. See Texas Bus. Orgs. Code §§ 251.255-257.

      b. Decide on a management structure.

      • The cooperative association has broad powers–to form contracts, hold property, sue and be sued, and so on. The complete list of these powers is found at Texas Bus. Orgs. Code §§ 2.101, 2.110. Remember that these powers are subject to the spending limitations of  Texas Bus. Orgs. Code §§ 2.103 and 2.111.
      • By default, the board of directors and officers exercise the powers of the cooperative, but you may limit those powers by using the articles of incorporation or the by-laws to reserve specific powers to members. See Texas Bus. Orgs. Code  § 3.103.

      c. Decide how to distribute profits.

      • Under Texas Bus. Orgs. Code § 251.302, at least once each year the cooperative must distribute its net savings in the following order (with the percentage of each portion being specified in the cooperative's bylaws):
      1. Investment dividends payable from the surplus of the total assets over total liabilities may be paid on invested capital or, if authorized by the bylaws, may be paid on membership certificates. (In this respect, Texas allows cooperatives to give members some of the benefits normally associated with traditional shareholders in a corporation; however, such distribution will not qualify for the special tax treatment applicable to patronage dividends.) Except as otherwise provided by the cooperative's bylaws, an investment dividend may not be cumulative and may not exceed 8% of investment capital. Total investment dividends distributed for a fiscal year may not exceed 50% of the net savings for the period. See Texas Bus. Orgs. Code § 251.301.
      2. A portion of the remainder may be allocated to an educational fund to be used in teaching cooperation.
      3. A portion of the remainder may be allocated to funds for the general welfare of the cooperative's members.
      4. A portion of the remainder may be allocated to retained earnings.
      5. Whatever remains shall be allocated at a uniform rate to each of the cooperative's patrons in proportion to individual patronage. For  regular a member patron, the proportionate amount of savings return distributed to the member may be any combination of cash, property, membership certificates, or investment certificates. For a subscriber patron (i.e., a member who has agreed to purchase a capital interest pursuant to an agreement), the patronage dividend may be distributed to the subscriber or credited to the subscriber's account until the amount of capital subscribed for has been fully paid.
      • Texas's cooperatives law does not use the term "patronage dividend" in discussing this final distribution, although it seems clear that this is what is being described. The law separately states that a "patronage dividend" is "a share of the net savings distributed among members of the cooperative association on the basis of patronage." See Texas Bus. Orgs. Code § 251.001(6).This suggests that the mandatory distribution is only to member/subscriber patrons, and not necessarily to all members of the public who have done business with the cooperative.
      4. Prepare your certificate of formation and bylaws.
      • The certificate of formation (also known as the articles of incorporation) are the basic governing document of the cooperative. Basic information for the articles of incorporation includes the cooperative's name and purpose, the number of shares, and the "par value" of these shares. See Texas Bus. Orgs. Code §§ 3.005, 3.013 for the complete list of information you must include in your certificate of formation. 
      • There is no set criteria for the content of bylaws, a set of internal rules that govern most day-to-day activities and procedures of the cooperative. Bylaws typically set forth internal rules and procedures for the corporation, including issues like the existence and responsibilities of officers, the size and qualifications of the board of directors and the manner and term of their election, and how the board of directors will function. See Texas Bus. Orgs. Code § 251.053. Bylaws must also reflect certain issues involving the management and distribution of the profits of a cooperative, as discussed above.

      5. Register with the State of Texas

      6. Hold an organization meeting.

      • After the corporate existence has begun, the organizers and  board of the directors named in the certificate of formation must then hold an organizational meeting to elect officers and adopt the bylaws. You can find the Texas statute relating to the organizational meeting at Texas Bus. Orgs. Code §§ 22.104, 251.051.

      7. Get your Employer Identification Number, register employees.

      • Request an Employer Identification Number (EIN) from the IRS. This can be done via its online application. There is no filing fee.
      • Whenever you hire an employee in Texas, you must inform both the IRS and the State of Texas. You can find details of all the necessary steps including verifying work eligibility and withholding allowances on the Hiring Employees section of the IRS website. You can find state-level information about reporting new hires at the Texas Employer Portal.
      • If you have an employee or employees in Texas, you are subject to Texas employment taxes. You can register online using the Texas Employer Portal. For more information on being an employer in Texas, request a copy of the Employer Handbook.
      • Texas employers can choose whether or not to provide workers' compensation coverage to their employees. The Texas Department of Insurance, Division of Workers' Compensation administers the program.

      8. Tax information. 

      9. Maintenance Requirements

      • You will also need a records book to store important documents concerning your cooperative association at your principal place of business. See Texas Bus. Orgs. Code §§ 3.1513 and 251.351 for specific information about record-keeping requirements under Texas law. See Texas Bus. Orgs. Code § 251.352 for a complete list of what must be included in this annual report. 
      • When a cooperative has 100 or more members or does at least $20,000 in annual business, it also must file an annual report of its financial condition. See Texas Bus. Orgs. Code § 251.353 for a complete list of what must be included in this report. 
      • Regular meetings of cooperative members of must be held at least once a year, as prescribed by the bylaws. See Texas Bus. Orgs. Code § 251.251. At this meeting, the cooperative must submit a written report to its members. 

      Note: The information contained on this page is meant for general information purposes only, and DMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The DMLP is not a substitute for individualized legal advice, especially not individualized tax advice. 

      Jurisdiction: 

      Subject Area: 

      Forming an L3C

      An L3C can be formed as a new entity or by converting an existing one. The procedure to establish a new L3C is very similar to the one for forming an LLCs. Like a standard LLC, an L3C is established by filing articles of organization with the state and executing a formal operating agreement. The main difference is that an L3C's organizing documents need to define its purpose in accordance with the provisions of Regs. Sec. 53.4944-3(a): 

      (1) an L3C must significantly further the accomplishment of one or more charitable purpose;
      (2) the production of income and appreciation of property cannot be a significant purpose of the L3C; and
      (3) an L3C cannot seek to accomplish any political or legislative purposes.

      The provisions of Regs. Sec. 53.4944-3(a) can be incorporated in a sample L3C operating agreement with a statement such as:

      (i) the Company shall be organized and operated primarily for religious, charitable, scientific, literary, or educational purposes [...] within the meaning of Section 170(c)(2)(B) of [the United States Internal Revenue Code of 1986 (the Code)]; (ii) no significant purpose of the Company shall be the production of income or the appreciation of property; and (iii) the Company shall not attempt to influence legislation, or participate or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office, all within the meaning of Section 170(c)(2)(D) of the Code.

      In addition to Regs. Sec. 53.4944-3(a), there may be state-specific requirements governing L3C formation. For instance, in Vermont the label "L3C" must appear in the name of the organization and the articles of organization must conform to the standards for traditional LLCs. For more information, check our L3C state pages. 

      If you choose to covert an existing entity to an L3C, it would be prudent to consider the tax implications. There should be no adverse federal tax consequences if you are converting a standard LLC to an L3C without shifting membership interests. However, converting a corporation or a non-profit organization to an L3C can be burdensome and costly, requiring legal counsel. If the existing entity is formed in a state which does not allow L3Cs, you would also have to consider the cost of relocating your venture.

      State Law: Forming an L3C

      The Low-Profit Limited Liability Company (L3C) is a hybrid business form, combining a socially beneficial mission with a for-profit business entity.  Please note that only a few states recognize this business form.  For general information on L3Cs, please see this page.

       

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      Forming an L3C in Illinois

      Effective as of January 1, 2010, the Illinois Limited Liability Company Act, 805 ILL. COMP. STAT. ANN. 180/1-1 to 60-1 (West 2010), authorizes the formation of L3Cs. Here is an outline of the steps you need to follow in order to form an L3C in Illinois. The process is very similar to the one for forming an LLC in Illinois. You should also read the general section on forming an L3C for information that is applicable in any state.

      1. Choose a business name for the L3C and check for availability.

      2. Prepare and file articles of organization with the Secretary of State.

      • If your L3C has no more than 8 managers, you can file your articles of organization online. The fee for filing online is $600, including a basic $500 filing fee and a $100 fee for expedited service. The Secretary of State's website has a simple, fill-in-the-blank form for the articles of organization. Be sure to include the following statements in the definition of your business purpose (Article 5 on the form):
      1. The company intends to qualify as a low-profit limited liability company pursuant to Section 1-26 of the Limited Liability Company Act and shall at all times significantly further the accomplishment of one or more charitable or educational purposes within the meaning of Section 170(c)(2)(B) of the Internal Revenue Code of 1986, or its successor, and would not have been formed but for the relationship to the accomplishment of such charitable or educational purposes.
      2. No significant purpose of the company is the production of income or the appreciation of property.
      3. No purpose of the company is to accomplish one or more political or legislative purposes within the meaning of Section 170(c)(2)(D) of the Internal Revenue Code of 1986.
      For general information on articles of organization, see the section on forming an L3C and the Articles of Organization section of this Guide.
      • If you are converting an Illinois LLC in good standing to an L3C, you can file a simple, fill-in-the-blank form for your restated articles of organization. Be sure to include the abbreviation "L3C" in the new entity's name (Article 1 on the form) and the following statements in the definition of your business purpose (Article 6 on the form):
      1. The company intends to qualify as a low-profit limited liability company pursuant to Section 1-26 of the Limited Liability Company Act and shall at all times significantly further the accomplishment of one or more charitable or educational purposes within the meaning of Section 170(c)(2)(B) of the Internal Revenue Code of 1986, or its successor, and would not have been formed but for the relationship to the accomplishment of such charitable or educational purposes.
      2. No significant purpose of the company is the production of income or the appreciation of property.
      3. No purpose of the company is to accomplish one or more political or legislative purposes within the meaning of Section 170(c)(2)(D) of the Internal Revenue Code of 1986.

      Restated articles of organization cannot be filed online, and the filing fee is $500.

      3. Negotiate and execute an operating agreement.

      • Illinois does not require an operating agreement in order to form an L3C, but executing one is highly advisable. Please see the section on forming an L3C in this Guide for details. The operating agreement does not need to be filed with the state.

      4. File an annual report with the Department of Business Services.

      • An Illinois L3C needs to file an annual report with the Department of Business Services. If your L3C has no more than 8 managers, you can file your annual report online (scroll all the way down). The fee for filing the report online is $300, including a basic $250 filing fee and a $50 fee for expedited service.

      5. Obtain any required local licenses.

      6. Determine what tax and other regulatory obligations the L3C has, and take care of any necessary registrations.

      • Consult with an attorney to ensure that the L3C is fulfilling its tax obligations and the necessary tax and registration paperwork is properly filed. For general information on the tax treatment of L3Cs, see the L3C section of this guide.

      7. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. You may want to do this early on by opening a bank account for your business.

      8. Other Notable Requirements for Maintaining an L3C in Illinois

      • Illinois requires certain documents to be kept at an L3C's principal place of business. A list of the required documents is located in 805 Ill. Comp. Stat. 180/1-40.

       

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      Forming an L3C in Maine

      On December 22, 2009, Maine Representative Charles Priest introduced House Paper No. 1118, proposing that L3Cs be authorized in Maine. The bill was enacted by the Maine legislature on April 6, 2010, and signed into law by Governor John Baldacci on April 9, 2010. Effective as of July 1, 2011, the Maine Limited Liability Company Act will authorize the formation of L3Cs.

       

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      Forming an L3C in Michigan

      Effective as of January 16, 2009, the Michigan Limited Liability Companies Act authorizes the formation of L3Cs. Here is an outline of the steps you need to follow in order to form an L3C in Michigan. The process is very similar to the one for forming an LLC in Michigan. You should also read the general section on forming an L3C for information that is applicable in any state.

      1. Choose a business name for the L3C and check for availability.

      • Please see our section on choosing and checking the availability of a name for your small business, as well as our section on the trademark law aspects of choosing a name.
      • Michigan requires an L3C name to contain the words "low-profit limited liability company", or the abbreviation "L.3.C." or "l.3.c.", with or without periods. Additionally, your business name may not be the same as, or deceptively similar to, that of any other Michigan business entity or any foreign business entity registered in the state. 
      • You may want to reserve a name to protect it prior to the organization of the company. You may reserve a name for 180 days by filing a simple, fill-in-the-blank form with the Department of Energy, Labor & Economic Growth. The filing fee is $50.
      • Although you are not required to do so, consider registering your business name as a federal and/or state trademark.

      2. Prepare and file articles of domestic organization with the Secretary of State.

      • The filing fee is $50. The Department of Energy, Labor & Economic Growth's website has a simple, fill-in-the-blank form for drafting your articles of organization. Be sure to include the words "low-profit limited liability company" or the abbreviation "L.3.C." or "l.3.c." in the name of the new entity (Article I of the form) and white out the "all purpose" clause in Article II of the form. Michigan law requires that the definition of your business purpose (Article II of the form) include the language below:
      (i) The limited liability company significantly furthers the accomplishment of 1 or more charitable or educational purposes described in section 170(c)(2)(B) of the internal revenue code, 26 USC 170, and would not have been formed except to accomplish those charitable or educational purposes.
      (ii) The production of income or appreciation of property is not a significant purpose of the limited liability company. However, in the absence of other factors, the fact that a limited liability company produces significant income or capital appreciation is not conclusive evidence of a significant purpose involving the production of income or the appreciation of property.
      (iii) The purposes of the limited liability company do not include accomplishing 1 or more political or legislative purposes described in section 170(c)(2)(D) of the internal revenue code, 26 USC 170.
      For general information on articles of organization, see the section on forming an L3C and the Articles of Organization section of this Guide.
      • If you are converting an existing LLC to an L3C, you must file a simple, fill-in-the-blank form for drafting your restated articles of organization. Be sure to include the words "low-profit limited liability company" or the abbreviation "L.3.C." or "l.3.c." in the name of the new entity (Article I of the form) and white out the "all purpose" clause in Article II of the form. Michigan law requires that the definition of your business purpose (Article II of the form) include the language below:
      (i) The limited liability company significantly furthers the accomplishment of 1 or more charitable or educational purposes described in section 170(c)(2)(B) of the internal revenue code, 26 USC 170, and would not have been formed except to accomplish those charitable or educational purposes.
      (ii) The production of income or appreciation of property is not a significant purpose of the limited liability company. However, in the absence of other factors, the fact that a limited liability company produces significant income or capital appreciation is not conclusive evidence of a significant purpose involving the production of income or the appreciation of property.
      (iii) The purposes of the limited liability company do not include accomplishing 1 or more political or legislative purposes described in section 170(c)(2)(D) of the internal revenue code, 26 USC 170.

      The restated articles of organization filing fee is $50.

      3. Negotiate and execute an operating agreement.

      • Michigan does not require an operating agreement in order to form an L3C, but executing one is highly advisable. Please see the section on forming an L3C [link to How to Create L3Cs ] in this Guide for details. The operating agreement does not need to be filed with the state.

      4. File an annual statement with the Department of Energy, Labor & Economic Growth.

      • An L3C needs to file an annual statement with the Michigan Department of Energy, Labor & Economic Growth, Bureau of Commercial Services, Corporations Division before February 15 each year. The filing fee is $25, and you can file online via the FILEonline Service. If the L3C was formed in Michigan or authorized to transact business in Michigan after September 30, no annual statement is required on the February 15 immediately following formation or authorization.


      5. Obtain any required local licenses.

      6. Determine what tax and other regulatory obligations the L3C has, and take care of any necessary registrations.

      • Consult with an attorney to ensure that the L3C is fulfilling its tax obligations and the necessary tax and registration paperwork is properly filed. For general information on the tax treatment of L3Cs, see the L3C section of this guide.

      7. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. You may want to do this early on by opening a bank account for your business.

      8. Other Notable Requirements for Maintaining an L3C in Michigan

      • Michigan requires certain documents to be kept at an L3C's principal place of business. A list of the required documents is located in Mich. Comp. Laws § 450.4213.

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      Forming an L3C in North Carolina

      On February 25, 2009, North Carolina Senator Jim Jacumin introduced Senate Bill No. 308, proposing that L3Cs be authorized in North Carolina. The bill was ratified by the North Carolina legislature on July 9, 2010. It became effective on August 3, 2010, when Governor Bev Purdue signed it into law.

       

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      Forming an L3C in Utah

      Effective as of March 23, 2009, the Utah Low Profit Limited Liability Companies Act authorizes the formation of L3Cs. Here is an outline of the steps you need to follow in order to form an L3C in Utah. The process is very similar to the one for forming an LLC. You should also read the general section on forming an L3C for information that is applicable in any state.

      1. Choose a business name for the L3C and check for availability.

      2. Prepare and file articles of organization with the Utah Department of Commerce, Division of Corporations and Commercial Code.

      • The filing fee is $70. The Division of Corporations and Commercial Code's website has a simple, fill-in-the-blank form for drafting your articles of organization along with a set of general guidelines. You only need to put the actual business purpose of your L3C in Article 2 of the form without explicitly tracking the provisions of Regs. Sec. 53.4944-3(a). For general information on articles of organization, see the section on forming an L3C and the Articles of Organization section of this Guide.
      • If you are converting an existing LLC to an L3C, you must file a simple, fill-in-the-blank form for drafting your articles of amendment to the original articles of organization. Be sure to include "L3C" in the new entity's name and specify that the new entity is a Low-Profit Limited Liability Company in the section "The articles of organization are amended as follows." You only need to put the actual business purpose of your L3C in the section "The articles of organization are amended as follows," without explicitly tracking the provisions of Regs. Sec. 53.4944-3(a). The articles of amendment filing fee is $37.

      3. Negotiate and execute an operating agreement.

      • Utah does not require an operating agreement in order to form an L3C, but executing one is highly advisable. Please see the section on forming an L3C in this Guide for details. The operating agreement does not need to be filed with the state.

      4. File an annual report with the Division of Corporations and Commercial Code.

      • An L3C needs to file an annual report during the month when it was formed or authorized to do business in Utah. The Division of Corporations and Commercial Code website has a simple, fill-in-the-blank form for drafting your annual report. The filing fee is $10.

      5. Obtain any required local licenses.

      6. Determine what tax and other regulatory obligations the L3C has, and take care of any necessary registrations.

      • Consult with an attorney to ensure that the L3C is fulfilling its tax obligations and the necessary tax and registration paperwork is properly filed. For general information on the tax treatment of L3Cs, see the L3C section of this guide.

      7. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. You may want to do this early on by opening a bank account for your business.

      Jurisdiction: 

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      Forming an L3C in Vermont

      Effective as of April 30, 2008, the Vermont Limited Liability Companies Act authorizes the formation of L3Cs. Here is an outline of the steps you need to follow in order to form an L3C in Vermont. The process is very similar to the one for forming an LLC. You should also read the general section on forming an L3C for information that is applicable in any state.

      1. Choose a business name for the L3C and check for availability.

      2. Prepare and file articles of domestic organization with the Secretary of State.

      • The filing fee is $100. The Secretary of State's website has a simple, fill-in-the-blank form for drafting your articles of organization. It is assumed that you will operate your L3C in accordance with the provisions of Regs. Sec. 53.4944-3(a), so you do not have to track those provisions in the definition of your business purpose on the form. For general information on articles of organization, see the section on forming an L3C and the Articles of Organization section of this Guide.
      • If you are converting an existing LLC to an L3C, you must file a simple, fill-in-the-blank form for drafting your articles of amendment. Be sure to include "L3C" in the new entity's name and specify that you are converting your LLC to an L3C in the section "Changes other than listed above." The articles of amendment filing fee is $25.

      3. Negotiate and execute an operating agreement.

      • Vermont does not require an operating agreement in order to form an L3C, but executing one is highly advisable. Please see the section on forming an L3C in this Guide for details. The operating agreement does not need to be filed with the state.

      4. File an annual report with the Corporations division.

      • A Vermont L3C needs to file an annual report with the Corporations Division within two and a half months of the end of the fiscal year. The report may be filed online. The filing fee is $35.

      5. Obtain any required local licenses.

      6. Determine what tax and other regulatory obligations the L3C has, and take care of any necessary registrations.

      • Consult with an attorney to ensure that the L3C is fulfilling its tax obligations and the necessary tax and registration paperwork is properly filed. For general information on the tax treatment of L3Cs, see the L3C section of this guide.

      7. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. You may want to do this early on by opening a bank account for your business.

       

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      Forming an L3C in Wyoming

      Effective as of July 1, 2010, the Wyoming Limited Liability Company Act, WYO. STAT. ANN. §§ 17-29-101 to -1105 (West 2010), authorizes the formation of L3Cs. Here is an outline of the steps you need to follow in order to form an L3C in Wyoming. The process is very similar to the one for forming an LLC. You should also read the general section on forming an L3C for information that is applicable in any state.

      1. Choose a business name for the L3C and check for availability.

      • Please see our section on choosing and checking the availability of a name for your small business, as well as our section on the trademark law aspects of choosing a name.
      • Wyoming law requires an L3C name to contain the abbreviations "L3C," "l3c," "low profit ltd. liability company," "low profit ltd. Liability co." or "low profit limited liability co." Additionally, your business name may not be the same as, or deceptively similar to, that of any other Wyoming business entity or any foreign business entity registered in the state.
      • You may want to reserve a name to protect it prior to the organization of the company. You may reserve a name for 120 days by filing a simple, fill-in-the-blank form with the Secretary of State. The filing fee is $50.
      • Although you are not required to do so, consider registering your business name as a federal and/or state trademark.

      2. Prepare and file articles of organization with the Secretary of State.

      • The filing fee is $100. The Secretary of State's website has a simple, fill-in-the-blank form for drafting your articles of organization. Consult an attorney to ensure that your articles of organization sufficiently demonstrate that the L3C will operate in accordance with the provisions of Regs. Sec. 53.4944-3(a). In addition, the articles you file must be accompanied by a written consent to appointment executed by the L3C's registered agent. For general information on articles of organization, see the section on forming an L3C and the Articles of Organization section of this Guide.
      • If you are converting an existing LLC to an L3C, you must file a simple, fill-in-the-blank form for drafting your amendment to articles. Be sure to correct the name of the LLC to one which includes the abbreviations "L3C," "l3c," "low profit ltd. liability company," "low profit ltd. Liability co." or "low profit limited liability co." In addition, consult an attorney to ensure that your articles of organization sufficiently demonstrate that the L3C will operate in accordance with the provisions of Regs. Sec. 53.4944-3(a). The correction to articles filing fee is $50.

      3. Negotiate and execute an operating agreement.

      • Wyoming does not require an operating agreement in order to form an L3C, but executing one is highly advisable. Please see the section on forming an L3C in this Guide for details. The operating agreement does not need to be filed with the state.

      4. File an annual report with the Business division.

      • An L3C needs to file an annual report during the month when it was formed or authorized to do business in Wyoming. The report may be filed online.

      5. Obtain any required local licenses.

      6. Determine what tax and other regulatory obligations the L3C has, and take care of any necessary registrations.

      • Consult with an attorney to ensure that the L3C is fulfilling its tax obligations and the necessary tax and registration paperwork is properly filed. For general information on the tax treatment of L3Cs, see the L3C section of this guide.

      7. Open a bank account for your business.

      • It is a good idea to keep your business's finances separate from your personal accounts. You may want to do this early on by opening a bank account for your business.

      Jurisdiction: 

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      Other Business Formation and Governance Issues

      The pages in this section elaborate on a variety of issues relevant to choosing a business structure and starting a business. They are not meant to stand alone, but rather are pages referenced repeatedly throughout the Choosing a Business Form and How to Start a Business sections. A short description of the pages follow:

      • Limited Liability: This page explains what it means for an owner of a business to enjoy limited liability for the debts and obligations of the business.
      • Personal Liability: This page explains what it means for the owner of a business to be personally liable for the debts and obligation of the business.
      • Piercing the Corporate Veil: This page discusses the extremely limited circumstances under which a court might disregard the limited liability characteristic of an LLC or corporation.
      • New York City Taxes: This page has details about the taxes that apply to New York City businesses.

      Subject Area: 

      Choosing and Checking the Availability of a Business Name

      Choosing a business name for your website or blog involves understanding something about federal trademark law -- please see the Trademark for Business Naming section for details. For a helpful general guide to choosing a business name, see FindLaw's Picking a Winning Name for Your Business. TNW Entrepreneur also has an excellent article by Julian Shapiro on common pitfalls in selecting a name for an Internet-based business and ways to avoid them.

      There are a number of ways to check the availability of a name, including doing a basic internet search, searching the list of "fictitious" or "assumed" business names at your local county clerk's office, searching your state's database of "fictitious" or "assumed" business names, and searching the federal trademark database at the U.S. Patent and Trademark Office (free of charge). For details on checking the availability of a business name, see FindLaw's Make Sure Your Proposed Business Name Is Available.

      You may already have a domain name for your website or blog. If not, when choosing a business name you should consider whether there is an available domain name that would work well with the business name. You can search for and register domain names by visiting a domain name registrar such as Network Solutions, Register.com, or Go Daddy.

      Jurisdiction: 

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      Copyright Ownership of Content in a Business

      Under U.S. copyright law, the author of an article or blog post generally is the owner of the copyrights in that work. The same applies for the creator of a video clip or the photographer who takes a photograph -- as a default rule, the creator is the owner of copyright in her work. This rule is subject to a few exceptions, which we discuss in the Copyright Ownership section of this guide. On this page, we will try to give you a rough estimation of who will own what in terms of copyright in articles, posts, video and other content, when work is carried out through each of the pertinent types of business entity:

      • Sole Proprietorship: As the owner of a sole proprietorship, you would own the copyright in your articles, posts, and other content. You will also own the copyright in any articles, posts, or other content created by your employees (if any) in the course of their jobs. You would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits within one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire."

      • Informal Group: There is a great deal of uncertainty regarding who owns the copyright in articles, posts, and other content because of the uncertainty as to the legal status of the informal group. Depending on your legal status vis-a-vis other individuals in the group, you may or may not own the copyright in material that you create, and you may or may not be able to stop co-publishers from continuing to publish your work even after you withdraw from the group. Eric Goldman has done an excellent job applying copyright ownership analysis to co-blogging arrangements in his article, Co-Blogging Law. All these issues are better dealt with in a co-publishing agreement, discussed in the Informal Group section.

      • Partnership: The partnership would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The partnership would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits within one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." As for the works of partners themselves, the law is not entirely clear. It appears that the partnership will own the copyright in works created by the partners in furtherance of partnership objectives, such as publishing a jointly-run website. To add to the confusion, partners can address this issue in the partnership agreement, specifying either that the business or the individual partners will own the copyrights to partner work.

      • LLC: The LLC itself would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The LLC would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits within one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." As for the works of members themselves, the law is less clear. Members who make themselves employees of their business entities in return for a salary would probably be considered "employees" for copyright purposes, and thus the LLC would own the copyright in articles, posts,and other content created by the member as part of the job. To avoid confusion, members of an LLC could address this issue in the operating agreement, specifying either that the business or the individual members will own the copyrights to member-created work.

      • Corporation: The corporation itself would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The corporation would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits within one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." Shareholders who become officers of the corporation likely would be considered "employees" for copyright purposes, and thus the corporation would own the copyright in articles, posts, or other content created by the shareholder-officer as part of the job.

      • Nonprofit Organization: The nonprofit organization itself would own the copyright in the articles, posts, and other content created by its employees in the course of their jobs. There being no "owners" of a nonprofit in a legal sense, the term "employees" likely would include high level officers of the nonprofit and even the founder or director. The nonprofit organization would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits within one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire."

      If someone else owns the copyright to articles, posts, and other content appearing on your site, then that person may be able to force you to remove the content, for instance, after withdrawal from the business. It could be devastating to your site if you were forced to take down all of this content. As the text above indicates, you don't have to worry about this in the case of employees because the business owns the copyright in their work. In the case of LLCs, corporations, and nonprofits, the term "employee" likely will often encompass high level actors like members, shareholders, and officers who participate in the day-to-day managements of the business. With LLCs and partnerships, uncertainty about who owns copyright can be fixed by express agreement, so you may want to draft the partnership or operating agreement to provide that the business, and not the individual members or partners, own copyright in their work. Alternatively, partners and members could expressly license the firm to continue using their work, even after withdrawal of the relevant individual.

      Even absent an express agreement, a court might find that your business has an implied license (i.e., permission) to continue using partner-, member-, or independent contractor-created content on your website. Alternatively, there is a strong argument that a website or blog -- taken as a whole -- is a "collective work" under copyright law and each article or post is a contribution to that collective work. In that case, you may be able to continue publishing any disputed content as "part of that particular collective work, any revision of that collective work, and any later collective work in the same series." 17 U.S.C. § 201(c). For more on collective works, see the Works Owned by One or More Creators section of this Guide.

      Note: Ownership of copyright is a very complex, fact-specific area of copyright law, and the determination of who is an employee and who is an independent contractor is very difficult to make in the abstract. The material on this page is no substitute for the individual attention of a lawyer who is familiar with your personal circumstances.

      Employee Versus Independent Contractor

      In the course of operating a website or blog, you might hire people to perform work for you. For example, you might hire someone to design your website or write code for some functionality that you want on the site. You might hire other journalists or bloggers to create content for the site. Depending on the nature of your enterprise, you might even be able to take on volunteers or interns to perform tasks in return for the opportunity to get some experience or training in the field of online publishing. There are nearly limitless ways that you can structure these work relationships, and how you structure them has legal consequences. Quite often, these legal consequences hinge on whether the person that you've hired is an "employee" or an "independent contractor." This is a question of the law of agency, but it affects copyright ownership, personal liability, and tax issues, to name a few.

      The information on this page is mainly geared toward the "hiring party," the person who is hiring someone else to perform work. But it applies equally to the "hired party," the person who is hired to perform work. You may find yourself carrying on online publishing activities in the position of the hired party, and you can draw guidance from this information as well.  If you find yourself working as an independent contactor (often called a freelancer), you might find some useful tips in this Salon article: What Every Freelancer Should Know.

      When the Determination is Made

      The question of whether a hired party is an "employee" or "independent contractor" often comes up after some dispute arises, and someone files a lawsuit. This means that the question won't necessarily be resolved definitively until a court rules on the issue. Before any dispute arises, the parties to an employment relationship can enter into a contract that designates the hired party as an "employee" or "independent contractor," but a court is not obliged to honor that designation if the actual circumstances of the relationship tell a different story. That said, an agreement formalizing the parties' understanding of their relationship may have great weight in a court's determination of the question. It is generally a good idea to create such an express agreement, because it gives both sides more certainty as to their legal status, and will help them meet their respective tax obligations, which must be done without the aid of a court determination. For more on the tax consequences of "employee" versus "independent contractor" status, see the Independent Contractors vs. Employees page on the IRS website.

      The Factors Considered

      As a general matter, a hired party is the employee of the hiring party when the hiring party controls (or has the right to control) the manner and means of the hired party's performance of work. The fact that work is performed gratuitously does not mean that the hired party is not an employee. Restatement (Third) of Agency § 7.07(3). In contrast, a hired party is an independent contractor when he "is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Restatement (Second) of Agency § 2(3). The touchstone, then, is the amount of control that the hiring party exerts over the hired party's work.

      Other factors play a role as well. Courts apply a fact-sensitive, multi-factor test in order to determine whether someone is an employee or independent contractor. Some of the factors include:

      • the extent of control that the parties have agreed that the hiring party may exercise (and the extent actually exercised) over the details of the work (if a lot, leans toward employee; if not much, leans toward independent contractor);
      • whether the hired party is engaged in a distinct occupation or business (if no, leans toward employee; if yes, leans toward independent contractor);
      • whether the type of work done by the hired party is ordinarily done under supervision (if yes, leans toward employee; if no, leans toward independent contractor);
      • the skill required in the hired party's occupation (if little, leans toward employee; if a lot, leans toward independent contractor);
      • whether the hiring party supplies the tools and other instruments used in the work and the place in which to perform it (if yes, leans toward employee; if no, leans toward independent contractor);
      • the length of time during which the hired party is engaged by the hiring party (if a longer time, leans toward employee; if a shorter time, leans toward independent contractor);
      • whether the hired party is paid by the job or by the time worked (if the latter, leans toward employee; if the former, leans toward independent contractor);
      • whether the hired party's work is part of the hiring party's regular business (if yes, leans toward employee; if no, leans toward independent contractor); and
      • whether the individuals believes that they are creating an employment relationship (if yes, leans toward employee; if no, leans toward independent contractor).

      Other important factors include whether the hired party receives employee benefits, whether the hiring party withholds income and social security taxes for the hired party, and whether the hiring party has the right to assign additional projects to the hired person, all of which support the conclusion that the hired party is an employee. You see these factors in most ordinary employer-employee relationships.

      Some Examples

      As you can see, it won't always be easy to tell ahead of time if someone is an employee or independent contractor. But some generalizations are possible:

      • A "guest blogger" who chooses her own topics, writes and posts content with little or no editorial input from other co-bloggers, and who works from her own home using her own computer would probably not be an employee of the more permanent blogger or bloggers running the site. She would be an independent contractor.
      • A staff journalist working for an online news service that receives a yearly salary and employment benefits, who works on stories assigned to him by an editor who exercises substantial editorial oversight, and who works out of the company offices would likely be an employee.
      • A photographer who "picks up" individual projects for the same online news service from time to time, gets paid by the project, and who works out of her own home using her own equipment would likely be an independent contractor.

      The particular examples are not terribly important. The point is that many factors are involved, but control over the performance of work is the most important one. Despite the complexity of the test, your "common sense" as to who is an employee and who is a "freelancer" will likely serve you well in most instances.

      Note: The determination of who is an employee and who is an independent contractor is very difficult to make in the abstract. The material on this page is no substitute for the individual attention of a lawyer and/or accountant who is familiar with your personal circumstances.

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      Limited Liability

      Under traditional American legal principles, an owner of a business was liable for harm caused by the business, even if the owner was not personally involved in causing that harm. Contemporary business law removes this ownership-based pathway to liability for limited liability business structures like corporations and LLCs. If you have limited liability, a plaintiff who wins a court judgment against your business cannot satisfy the judgment out of your personal assets simply because of your status as an owner of the business. Rather, the plaintiff must collect out of assets of the business only, which includes amounts you have already invested in it. Limited liability offers you -- in your capacity as an owner of the business -- protection for your personal assets if one of your co-owners or employees commits an unlawful action that injures someone, such as writing a defamatory article or post. Additionally, it protects your personal assets if someone sues your business for nonpayment of a debt (unless you gave a personal guarantee).

      Certain kinds of business entity offer limited liability to owners. Members of an LLC and shareholders of a corporation generally are not liable for the debts and obligations of the business, including liability for the unlawful actions of others acting on behalf of the business. The same goes for those individuals who start and/or operate a nonprofit organization, although they are not considered "owners" or "shareholders" of the nonprofit.

      Other forms of business do not offer limited liability, but rather expose their owners to personal liability for the debts and obligations of the business, including for the unlawful actions of others participating in it. Owners of sole proprietorships are personally liable for the unlawful actions of their employees committed in the scope of their employment. Partners are personally liable for the unlawful actions of their partners and employees committed in furtherance of the business. Individuals operating in an informal group may be held personally liable for the actions of others in the group if the group is deemed an informal partnership or an employer-employee relationship is found.

      No form of business, however, can insulate you from personal liability for your own misconduct. If you write a defamatory article or blog post, for example, a victorious plaintiff could satisfy the judgment out of your personal assets, regardless of what type of business you adopt.

      While limited liability is an attractive feature in a business structure, it often is accompanied by increased costs and hassles in terms of formation and operation of the business. You may want to weigh the benefits of limited liability against these other costs. The larger your business or nonprofit enterprise is (in terms of the number of people participating), the more attractive limited liability becomes. On the other hand, if your business or nonprofit enterprise is small -- say it involves just you creating content and publishing it online -- then limited liability is not such an important advantage because no one else is publishing material (and you're liable for your own content in any event). As a rule of thumb, the more people involved, the bigger the benefit from limited liability.

      A caveat: If your business will be engaging in significant activities other than publishing material online, or if the business will take on significant debt in order to finance its operations, then the benefit of limited liability grows in significance, regardless of how many other individuals are involved.

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      New York City and District of Columbia Taxes

      While many cities collect income taxes that are separate from and in addition to state and federal taxes, New York City taxes are notoriously complicated and burdensome -- not only re-taxing corporate business profits, but also collecting taxes from otherwise untaxed entities like LLCs, partnerships, and sole proprietorships.

      Unincorporated Business Tax (New York City and Washington, D.C.)

      New York City:

      New York City collects an Unincorporated Business Tax on the business income of every unincorporated business (sole proprietorships, partnerships, and LLCs) carried on - wholly or partly - in New York City. If the business can demonstrate that a portion of its business was done outside New York City, that portion will not be subject to this tax. The rate is 4% of taxable income. You must file for and pay this tax if

      • You have total gross income of more than $25,000 for a partnership or LLC with more than one member, or more than $75,000 for a sole proprietorship or single-member LLC, prior to any deduction for the cost of goods sold or services performed; or
      • You have an unincorporated business taxable income of more than $15,000 for a partnership or LLC with more than one member, or more than $35,000 for a sole proprietorship or single-member LLC.

      If your tax is $1,800 or less, a credit is issued for the entire amount of the tax and no tax will be due. If the tax is between $1,800 and $3,200, a credit is allowed in the amount of the tax multiplied by (3200 minus the tax), then divided by 1400.

      The website of the New York City Finance Commissioner has tax forms and other information about the Unincorporated Business Tax.

      District of Columbia:

      The District of Columbia collects an Unincorporated Business Franchise Tax on the business income of every unincorporated business (sole proprietorships, partnerships, and LLCs) carried on - wholly or partly - in the district. Individuals who earn income from a sole proprietorship, or have earnings from an entity such as a partnership or LLC that does not pay taxes at the entity level, must pay this tax. However, individuals do not need to pay separate individual income tax on income subject to the unincorporated business franchise tax.

      The income tax rate is 9.975% on income derived from business in the District of Columbia. The minimum tax is $250 if the business' gross receipts in the District are $1 million or less, and $1,000 if the District gross receipts are greater than $1 million. Gross receipts for purposes of calcluating the minimum tax include any income that is derived from any activity such as sales, rents, services, commissions, etc., from any source within the District. Gross receipts are determined without deduction of any expenses. There is an annual exemption up to $5,000 allowed.

      The law exempts:

      • Businesses with $12,000 or less of gross receipts;
      • Businesses that generate more than 80% of gross income from personal services rendered by the owners of the entity and in which capital is not a material income-producing factor; and
      • Certain trades, businesses, or professional organizations that either cannot be incorporated by law, custom, or ethics, or that can only be incorporated as professional corporations.

      Unincorporated businesses with over $12,000 of of gross receipts that are not exempted are required to file an unincorporated business franchise tax return each year. Quarterly estimated tax payments are required if the estimated franchise tax for the year is more than $1,000.

      Tax forms and further information are available on the District of Columbia Office of Tax and Revenue website.

      General Corporation Tax (New York City)

      If your corporation does business, employs capital, owns or leases property for business purposes, or maintains an office in New York City, it is subject to the General Corporation Tax. This tax only applies to incorporated businesses (unincorporated businesses are subject to New York City's Unincorporated Business Tax). If the corporation can demonstrate that a portion of its business was done outside New York City, that portion will not be subject to this tax. New York City's General Corporation Tax is imposed at the highest of the following four rates:

      • 8.85% of net income from New York City sources;
      • .15% of total capital allocated to New York City;
      • 8.85% of 30% of net income, plus the amount of salaries or other compensation paid to any person, including officers, who at any time during the year owned more than 5% of stock; or
      • Minimum tax base of $300.

      S corporations are not recognized by New York City and are subject to full corporate income tax.

      The website of the New York City Finance Commissioner has tax forms and other information about the General Corporation Tax.

      Note: The information contained on this page is meant for general, information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

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      Personal Liability

      Being "personally liable" means that a plaintiff who wins a court judgment against your business can satisfy it out of your personal assets, like your bank account, home, or automobile simply because of your status as an owner of the business. A common reason for a plaintiff to win a judgment against a business is that an employee or other agent of the business committed an unlawful action that injured her. As a general matter, then, personal liability means that your personal assets are exposed if one of your co-owners or employees commits an unlawful action that injures someone, such as writing a defamatory article or post.

      Certain kinds of business entity expose you to personal liability for the unlawful actions of others participating in the business. A sole proprietor is personally liable for the unlawful actions of her employees committed in the scope of their employment. A partner is personally liable for the unlawful actions of the other partners and employees committed in furtherance of the business. Individuals operating in an informal group may be held personally liable for the actions of others in the group if the group is deemed an informal partnership or an employer-employee relationship is found.

      Other forms of business do not expose you to personal liability for the unlawful actions of others who participate in the business. If you form an LLC, a corporation, or a nonprofit organization you generally will not be held personally liable for the actions of others taking part in the business.

      While personal liability is an unpleasant prospect under any circumstances, the larger your business or nonprofit enterprise is, the more intolerable the risk. The major liability risk for most citizen media sites or blogs is getting sued for defamation. Other significant risks includes legal claims for invasion of privacy, copyright and trademark infringement, and violations of trade secret laws, all of which could arise out of the act of publishing content online. If your business or nonprofit enterprise involves just you creating content and publishing it, then personal liability is not such a serious problem because no one else is publishing material and you're liable for your own content in any event. If your business or nonprofit enterprise is bigger, and involves a number of different people publishing content online (whether they are co-owners of the business or employees), then personal liability for their actions is a more significant problem.

      A caveat: If your business will be engaging in significant activities other than publishing material online, or if the business will be taking on significant debt in order to finance its operations, then the disadvantage of personal liability grows in significance, regardless of how many other individuals are involved.

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      Piercing the Corporate Veil

      A properly formed and operated corporation or LLC offers its owners limited liability for the debts of the business, so that their losses are limited to their investment in the business. In some extreme and rare cases, however, courts hold the owners liable for the debts of the company, including for judgments resulting from lawsuits. In legal terminology, this is called "piercing the corporate veil."

      Courts normally pierce the corporate veil in situations where one owner or a small group of owners dominate the management and operation of the corporation or LLC. Without more, the combination of ownership and management is not a problem (indeed, LLCs are designed to be managed that way). The problem arises when one or more of the following factors are present:

      • Misuse of Corporate/LLC Funds. Courts look at whether a dominant shareholder or owner treats the assets of the corporation or LLC as if they were his own. This could involve a shareholder or owner intentionally siphoning off company assets for personal benefit. Alternatively, it could involve a shareholder or owner co-mingling company bank accounts and records with her own, and failing to keep good records of transactions between the company and herself. To avoid veil-piercing liability, you should never cause your company to pay you an amount of money that will render it insolvent (meaning, that the company's assets are less than its liabilities or it is unable to pay its bills as they become due). Additionally, you should always maintain a separate bank account for your company and keep separate financial records.
      • Undercapitalization. Courts also look at whether a corporation or LLC is undercapitalized. The exact definition of "undercapitalized" is not entirely clear, and the definition changes depending on the nature of the business. However, it is clear that you should never intentionally keep your company in a state where it lacks the assets necessary to pay its creditors. On the contrary, you and the other shareholders or owners (if any) should make a reasonable initial investment in the company. You don't necessarily need to put in so much money that you can cover all foreseeable needs or debts of the business (after all, businesses are permitted to take out loans, and they do so all the time), but you should invest enough so that you take on a "fair" share of the risks of business failure.
      • Failure to Observe Corporate Formalities. Courts sometimes consider the extent the owner or owners of a business have disregarded corporate formalities. Among the types of conduct that might constitute "disregard of formalities" are
        • failure to issue stock;
        • failure to have shareholder meetings to elect directors, or to hold director meetings, or to prepare minutes of these meetings; and
        • failure to formally approve or carefully document transactions between the business and its shareholders or members.
      This factor generally is more relevant to corporations, because LLCs do not require the same kinds of operating formalities. However, in order to maintain their limited liability protection, LLC members should observe certain formalities, such as keeping detailed financial records and recording minutes of major decisions.
      • Fraud. Courts also examine whether the dominant shareholder or owner uses the company to perpetrate a fraud or makes fraudulent representations about the business. As one commentator notes, this category can be seen as "a general catch-all prong which allows courts to disregard a legal entity when they feel like someone has complied with the letter, but not the spirit, of the law." This could involve making misrepresentations about the corporation's financial status, promising that the corporation will perform its obligations while knowing that this is impossible (or intending to do otherwise), or making representations that would lead a creditor to believe that someone, other than the corporation, stands behind a debt. But it could potentially cover much subtler forms of misrepresentation or wrongful conduct. As a practical matter, unless you intend to assume liability yourself, you should never make verbal assurances to creditors that you will pay the debts of the corporation if it is unable to meet its obligations. Most importantly, you should always be upfront and honest when communicating with creditors and/or clients of your business.

      The presence of one or another of these factors does not automatically result in piercing the corporate veil. The analysis that courts perform is fact-intensive and unpredictable. The presence of two or more of these factors, however, would make it more likely that a court would disregard the corporate/LLC form and hold you personally liable for the debts of the business.

      Note: No piercing of the corporate veil is necessary to hold you personally liable for your own unlawful actions, such as if you write a defamatory article or blog post. In that case, you are independently liable for the injury done. The LLC or corporation may also be liable, but a plaintiff could satisfy the judgment out of your personal assets should the company's assets prove insufficient.

      Best Practices for Avoiding Piercing the Corporate Veil

      • Never cause your corporation or LLC to pay you an amount that would render it insolvent, or any amount that would seem unreasonable to an outside observer. Document the justifications for large payments made to shareholders or members.

      • Keep separate financial records for your business and yourself, and maintain a separate bank account for the business. Avoid borrowing money from the company for personal expenses. If you absolutely have to withdraw funds from the business, make sure that you keep accurate records of how much was borrowed and when you paid it back. Charge yourself a reasonable interest rate for the loan.

      • Do not verbally assure creditors that you will personally take on the obligations of the corporation if the company proves unable to do so. Do not blend corporate and personal obligations.

      • If you operate as a corporation, make sure to observe the required corporate formalities, such as issuing stock, holding shareholder and board of directors meetings, keeping adequate minutes for meetings, and formally approving and documenting any transactions between the company and shareholders. For more on required corporate formalities, see the Corporation and the Corporate Records sections.

      • If you operate as an LLC, the same formalities are not required, but LLC members should observe certain formalities, such as keeping detailed financial records and recording minutes of major decisions.

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      Tax Obligations of Small Businesses

      Federal Obligations

      As a small business owner (for-profit), whether a sole proprietorship, partnership, LLC or corporation, you must pay self employment tax and file Schedule SE to Form 1040 if you earn profits of $400 or more in a given year from the business. See the Self-Employment Tax page on the IRS website for details.

      If your small business (including a nonprofit) has one or more employees, you will generally be required to withhold federal income tax from their wages. You also may be subject to Social Security and Medicare taxes under the Federal Insurance Contributions Act (FICA) and federal unemployment tax under the Federal Unemployment Tax Act (FUTA). If you are required to report employment taxes or give statements to employees, you need an employer identification number. See the Employment Taxes for Businesses page on the IRS website for details.

      If your small business hires independent contractors, you need to report contract payments annually on Form 1099-MISC, which goes to the independent contractor and to the IRS. Please see the Independent Contractors vs. Employees page on the IRS website and the Employee Versus Independent Contractor section of this guide for details.

      Additional informational returns requirements may apply to your small business. Check out the IRS Guide To Information Returns for more information.

      Partnerships and multi-member LLCs that elect to be treated as partnerships generally do not pay federal income tax at the entity level, but must file Form 1065 annually with the IRS. This return shows the business's income, deductions, and other required information, and must include the names and addresses of each partner or member and each partner's or member's distributive share of taxable income.

      Nonprofit organizations that obtain 501(c)(3) exempt status generally do not pay federal income tax, but must file an annual tax return with the IRS, unless their gross receipts are normally $25,000 or less. Organizations beyond the $25,000 threshold with gross receipts below $1,000,000 and total assets at the end of the year less than $2,500,000 can file the return on Form 990EZ. Organizations with gross receipts or assets above that must file the return on Form 990. For details, including how to calculate gross receipts, see the Instructions for Form 990 and Form 990-EZ.

      State Obligations

      States impose additional taxes, withholdings, and informational filing requirements on small businesses. Businesses generally must report any new hires to the state, and take care of workers compensation requirements. See the How to Start a Business section for details on state requirements.

      Note: The information contained on this page is meant for general, information purposes only, and CMLP makes no claim as to comprehensiveness or accuracy of the information. Because of the complexity of tax issues associated with starting any business, you are encouraged to consult with a tax attorney and/or accountant to ensure compliance with federal, state, and local tax requirements. The CMLP is not a substitute for individualized legal advice, especially not individualized tax advice.

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      Trademark Law and Naming Your Business

      A trademark is a sign, mark, or indicator used by an individual, business, or organization to identify a product or service as its own and to distinguish the product or service from those of its competitors. A business name generally can be protected as a trademark under federal and state trademark law.

      Trademark law is designed to avoid consumer confusion over the trademarks that businesses or other organizations use in connection with their goods and services. Stated briefly, trademark law makes it unlawful for a business to use a trademark (e.g., a slogan, a logo, a name) in connection with a good or service if that use is confusingly similar to another business's use of a trademark. To see how this works, imagine a consumer - Sally. If Sally buys a Dell computer, she can be pretty sure that the computer was made by Dell Computer and nobody else. She can take Dell's reputation into account without worrying that a knockoff company is making shoddy computers with the Dell logo on them because trademark law prohibits that kind of confusing commercial activity and it gives Dell the right to sue for money damages and an injunction if someone does it.

      As a general rule, if someone in a similar field to yours is already using a particular business or organization name, you should not use it, nor should you use a name that would be confusingly similar. Traditionally, there was nothing to prevent someone from using a trademarked name in a completely unrelated field or industry (for instance, Delta Faucet and Delta Airlines) because there was no possibility that consumers would confuse one for the other. However, the emergence of something called "anti-dilution" law means that the owner of a "famous" trademark (it means pretty much what is sounds like) can prevent you from using it even in an unrelated industry. Therefore, it probably would not be a good idea to call a blog "Kodak News" or "McDonald'sBlog," unless your website is actually about Kodak or McDonald's (in which case you should read Using the Trademarks of Others section closely). Traditionally, the law also permitted multiple companies to use a given name in different geographical areas of the country, but the global nature of the Internet breaks down the importance of geographical isolation and makes it more likely that an Internet use of a name or trademark could be confusing regardless of where the brick-and-mortar businesses or organizations are physically located. Thus, you probably want to steer clear of a name that is the same or similar to a name used by someone else in your field, even if that person or organization is located far away from you.

      The process of naming your business and securing trademark rights can be summarized in three basic points:

      1. Choose a name for your business. It should be distinctive, not generic, and should not be close to the name of anyone in a similar business. For details, please see the Naming Your Business: Choosing A Name Capable of Trademark Protection section.

      2. Search for others using your chosen name or similar ones. You should search the Internet and federal and state trademark databases, at the very least. You should not use the name if someone in your field or a similar one is using it. You may be able to use the name if someone in an unrelated field is using it, but you should try not to use similar logos, styles, or colors. For details, please see the Naming Your Business: Searching for Trademarks of Others section.

      3. Consider registering your chosen business name as a trademark. Registering a state and/or federal trademark has advantages. It is relatively cheap and easy to register a state trademark. Federal registration is more costly, but it is worth considering because of its nationwide effect. For details, please see the Securing Trademark Rights: Ownership and Federal Registration section.

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      Naming Your Business: Choosing A Name Capable of Trademark Protection

      Choosing a distinctive name is important from a business perspective, but it is also important if you want trademark law to protect your business name. A business name is potentially a trademark protected by the law, but this protection depends on the type of name you choose.

      As a general matter, the more unique or distinctive the name is, the greater trademark protection it receives. Fanciful marks (made-up words like "Kodak"), arbitrary marks (existing words used in a way unrelated to their normal meaning, like "Apple" for computers), and suggestive marks (those that hint at a quality or aspect of the product or service, like "Netscape") receive the highest level of protection. You can register these kinds of trademarks immediately, without any evidence of "secondary meaning" -- i.e., proof that, through your use of the name in commerce, the public has come to identify it specifically with your good or service. Similarly, in the event of a lawsuit, you would not need to produce evidence of secondary meaning in order to make out your case.

      In contrast, a merely descriptive name can only receive full trademark protection after it acquires secondary meaning. Some examples include names that describe the product or service directly, such as Speedy Rental Car, or one that merely uses a person's name, such as Smith Computers or Jane's Collectibles. Terms that describe the geographic location of a good or service, like the New York Times, also are considered descriptive, and they can be protected as trademarks only upon proof that through use they have acquired secondary meaning. If you choose a merely descriptive name for your citizen media site or blog, you would not be able to register it at first, and you would not be able to successfully sue someone for using a confusingly similar trademark. You might be able to register it and/or bring a successful lawsuit at a later date, however, assuming that Internet users at some point come to identify your business name specifically with your work (i.e., it acquires secondary meaning).

      Lastly, a generic name can never receive trademark protection. A generic name is identical to the product or service to which it attaches. For instance, calling a business that hosted email accounts "email" would be a generic name. Keep in mind that a term can be a generic name for one product or service, but a valid trademark for another. For instance, "Apple" is a generic name for selling apples, but a valid trademark for computers, and "Bicycle" is a generic name for selling bicycles, but a valid trademark for playing cards. Some geographical terms like "swiss cheese" and "French fries" are also generic because they are synonymous with the item itself. However, this does not mean that all geographical names are generic.

      Choosing a business name presents a special problem for a community journalism site or blogger with a regional focus, where using a geographical or other descriptive term makes intuitive sense. After some thought, you may decide that the appropriate descriptive name is more important to you than strong trademark protection. Or, you may come up with a creative way of using a geographical term in a distinctive way (e.g., h2otown). Be aware also that your descriptive name may obtain secondary meaning should your site prove an influential and often-visited source of information -- think, for instance about the New York Times. So, keep in mind that you may start out with a business name that enjoys little protection under trademark law, but the amount of protection may grow over time.

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      Naming Your Business: Searching for Trademarks of Others

      Once you have chosen a business name, you should make sure that someone else is not already using it in a similar field. The easiest first step is to search an Internet search engine for your proposed name. If it is a common word that brings up a lot of results, add keywords relevant to your business or organizationto see if any similar enterprises have adopted the same name. If you see any other websites doing work similar to yours, you should consider choosing a different name. When you consider whether something is "work similar to yours," take a broad view. This could be anything from a journalism site, a blog, some kind of interactive web service, something tech-y with a heavy online presence, etc. There is little certainty in this area, and you will just have to do your best in making the call. The same goes for all the searching described below -- the task is to weed out names being used by people doing something similar to you, broadly construed.

      Next, you should look in TESS, the federal trademark database. Search for the name you're considering as well as close or obvious variations. If anything comes up, check to see if it is "LIVE" or "DEAD." If a mark is canceled, abandoned, or expired ("DEAD"), it probably is safe to use it, but you should do a little extra research to make sure that the company is not still using it in reality. If there are currently registered marks ("LIVE"), look to see with what goods or services the registering company or person is using them. If the company or person is not doing something similar to you, broadly construed, you can probably use the name. However, if the name is famous (i.e., it's a household name like Google or Volkswagen or Prince), you should avoid it. Even if a court would not ultimately conclude that your use of the name constitutes trademark dilution, large companies with famous marks can be very aggressive in policing the use of their trademarks, and they are likely to have highly trained lawyers to make your life difficult. In any case, if you choose to use a name that someone else has registered in connection with a different kind of business, be sure not to use a similar logo, design, or color scheme.

      Even after checking the federal database, you're still not necessarily in the clear. Each state and the District of Columbia has its own trademark registry. You can find out where your state's registry is at FindLaw's State Trademark Information page. States have their own trademark laws, which are generally similar to federal law and can be just as powerful if you are sued (or choose to sue someone else). You should perform a search for your business name in your own state and any other state in which you particularly expect to do business or become involved (beyond simply disseminating information to residents of a state via the Internet). To be completely thorough, you would have to search each state's database individually, which would be tedious and time-consuming. You can decide whether this is worthwhile. You can also pay an attorney or one of several Internet-based services to conduct a trademark search for you. FindLaw has more information on hiring a professional firm to conduct a trademark search.

      Even if you find nothing through all of these searches, it is still possible that someone somewhere is already using the name you intend to use. This is true because federal and some state trademark laws protect unregistered trademarks, and there is no comprehensive list of all unregistered trademarks in use. The searches described above are the best you can do, and if they turn up negative, the chances that you will run into trouble are greatly reduced.

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      Securing Trademark Rights: Ownership and Federal Registration

      There are three ways to secure your rights in your trademark: (1) use the mark in commerce in connection with a good or service; (2) register the trademark with your state; or (3) register the trademark with the United States Patent and Trademark Office ("USPTO").

      Once you use a trademark in commerce in connection with a good or service, you begin to acquire what are called "common law" rights in the mark, so long as it is not confusingly similiar to or dilutive of another's mark. The common law rights you gain in a trademark through use are limited to the geographic area in which you have actually used the mark, or those areas into which you have demonstrable plans to expand your use (the so-called "zone of natural expansion"). This limitation is less important for online ventures, however, as availability of your services over the Internet gives rise to a presumption of national trademark rights. It is important to note that if someone else is already using a confusingly similiar mark, you will be unabale to obtain rights in your mark and could potentially be liable for trademark infringement or dilution. If you intend to obtain rights in a trademark through simple use in commerce, then you must be sure to do an effective search of existing trademarks before you begin using it in connection with your good or service. Please see our section on Naming Your Business: Searching for the Trademarks of Others for details. For more information on how to acquire trademark rights, see Sarah Bird's excellent post, Trademark Basics: Be First in Your Market, Be Distinctive, and Don't Confuse the Consumer.

      You may also choose to register your trademark with your state or with the United States Patent and Trademark Office, but you are not required to do so in order to bring a lawsuit to protect it against infringement or dilution. State registration is likely to be both cheaper and easier than federal registration, but is probably not the best option for online activities, which by definition have a national and international scope. However, if you would like to find out more about your state's registration process, you can contact your state authority responsible for trademark matters.

      Registering a trademark with the USPTO puts the country on notice that you are using a certain mark, and also provides additional protections and procedural benefits if you need to litigate your rights. However, this process is fairly long (usually taking a year or more) and potentially expensive (the fees start at $275). We provide more information about the federal registration process below. 

      Federal Registration

      Benefits of Federal Registration

      As noted above, federal trademark registration is not required for you to protect your trademark. However, registration provides some advantages. Specifically, registering a trademark with the USPTO provides the following benefits:

      1. a public record of the trademark claim, which puts others on notice;
      2. presumptive evidence of trademark ownership and exclusive right to use the trademark throughout the U.S. (if you sue to protect the trademark, this will help you make your case);
      3. a U.S. registration can be used as the basis for obtaining registration in foreign countries; and
      4. the ability to file a suit related to the trademark in a federal court and recover the defendant's profits and up to three times your actual damages, as well as your attorney fees if the court finds the case to be exceptional.

      Because federal registration is expensive, you'll want to weigh these benefits against the out-of-pocket costs of obtaining a registration.

      How to Register

      Once you have decided to federally register your trademark, you can file the necessary forms to apply for federal trademark registration with the United States Patent and Trademark Office online. The cost is between $275-375 per mark for each International Class in which you seek registration, depending upon the filing method you chose.

      The USPTO estimates that filling out the form should take about 15-20 minutes, although first time filers are likely to take longer. A federal application must contain at least four things, in addition to the filing fee: (1) the owner's name and address, (2) a clear drawing of the mark (which can be automatically generated from text if you do not have a logo); (3) a description of the goods or services for which the mark is or will be used and the corresponding International Class number(s); and (4) the filing basis.

      You can register your trademark for use in connection with more than one set of goods or services, but you will have to pay an additional filing fee if the goods and services you list fall into more than one International Class. The USPTO has available a searchable index of identifications for goods and services that they recommend you use for your application, but you can also type in something else if your product or service does not fit into one of these categories. If your business does not clearly fall within one category of goods or services, you may want to consider filing in more than one class, as this will would give you the greatest protection and flexibility. The downside to seeking registration in more than one class, aside from the additional filing fees, is that you are more likely to encounter a conflict with someone else who is using the mark or a similar one in another field or industry. Furthermore, if you do expand in the future, you can apply for a new registration at that time (unless someone else has already registered the mark in that area).

      There are two different filing bases for a new trademark application: use based, or intent-to-use.  If you have already begun using the trademark in interstate commerce, you should file a use based application.  To do so, in addition to filling out the application, you must supply the USPTO with a specimen showing the mark as it is used in connection with your goods or services, as well as the date(s) on which you first used the mark anywhere and in interstate commerce.  If you have not yet begun using the trademark, you should file an intent-to-use application. You will be required to submit a specimen and date of first use later in the application process before your mark is allowed to register.

      If this process sounds too complicated for you, you can hire an attorney to do it. Trademark registration is usually fairly straightforward for attorneys who specialize in it, so it is relatively inexpensive.

      Within about 3-6 months after you file the registration forms an attorney with the USPTO will examine and research your application. There are several categories of marks that the USPTO will refuse to register, including "immoral, deceptive, or scandalous" marks (such as those including foul language), those that disparage or falsely imply a connection to other people or entities, and marks that are confusingly similar to others that are already registered.

      The USPTO attorney may contact you to resolve any issues in your application, by issuing what's called an "Office Action." If you receive an Office Action, you will have six months in which to respond to any issues raised by the examining attorney. If the issues raised in the Office Action are too complex, you may want to hire an attorney to draft your response.

      If the USPTO approves your application, it will publish your trademark in the Official Gazette, and anyone who believes that they would be damaged by its registration (such as a senior user of a confusingly similar mark) will have thirty days in which to oppose registration of the mark. If no one opposes (or requests an extension of time to oppose) within those thirty days, the USPTO will either approve your mark for registration (if you have already submitted an acceptable specimen of use) or issue a Notice of Allowance (if your application is still based on an intent-to-use). If the USPTO issues a Notice of Allowance, you will have six months from the date on which it was issued to either submit an acceptable specimen, or request an additional extension of time in which to do so.  You can request up to five 6-month extensions of time in which to submit a specimine of use. All told, the registration process can easily take 1-2 years, but once it is approved your rights date back to the day on which you filed your application.

      For additional details on registering a trademark, see the Chilling Effects FAQ on Trademark.

      Maintaining Your Trademark Rights

      Trademark rights can last indefinitely so long as the trademark owner continues to use the mark in commerce to identify goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms upon filing an affidavit of continued use, along with a specimen of use. In addition, between the fifth and sixth years after the date of initial registration, the registrant must file an additional affidavit confirming that the mark is still in use in commerce in order to maintain the registration. If no affidavit is filed, the registration is canceled. At this time, if the mark has been in continuous use in interestate commerce for five years following the date of registration, the owner can file an affidavit of incontestibility that, if accepted by the USPTO, will significantly narrow the grounds upon which a third party can seek to have the registration cancelled.  

      In addition to renewing your registration (should you choose to register), you need to take some additional steps to make sure that you do not lose your trademark rights:

      • Periodically check whether another individual or company is using your trademark in a way that is confusingly similar to your use of the mark. If you see something like this, you should probably send a cease-and-desist letter and contemplate filing a lawsuit. Otherwise, a court might later determine that you have abandoned your trademark. We know that this may be objectionable to some, but it is one of the costs of asserting trademark rights. Remember that nothing requires you to acquire or enforce trademark rights in the first place.

      • Try to use the mark continuously. If you stop, keep a record of why you stopped, and your plans to resume use of the mark in the future. Otherwise, a court might determine that you have abandoned it.

      • Discourage others from using your trademark as an ordinary verb or noun, or it might become generic. For example, if consumers refered to xeroxing documents instead of photocopying them, blowing their noses with kleenex instead of facial tissues, and googling things instead of using a search engine, at some point the owners of the marks Xerox, Kleenex, and Google would lose the ability to prevent others from using those terms to describe their own products or services. This in fact happened to aspirin (formerly a trademark of Bayer), cellophane (formerly held by DuPont), and escalator (created by the Otis Elevator Company), among many other words that we now take for granted. The basic test is whether consumers generally understand a word as referring to the products or services of one company or individual (e.g., Xerox with a capital "X") or as including all makers of a certain product or service (e.g., Canon and HP make a xerox machine with a lowercase "x"). Admittedly, it is not easy to control the public's diction, but you can start yourself by only using the term in its trademark sense.

      Trademark Notice

      You can choose to include a trademark notice next to your trademark, but you are not required to do so in order to protect the mark. A trademark notice indicates to others that you claim ownership of the trademark in connection with the goods or services in question, warning them against possible infringement. Any time you believe you have a rightful claim to a mark you may designate the mark with a TM (for goods) or SM (for services). You do not have to register the mark to use these notices. In addition, if you choose to seek federal registration of your trademark, you can use these notices during the registration process. If you obtain a federal registration, you will probably want to use the more powerful ® notice, which can only be used after a successful registration with the USPTO. Even then, you can only use the ® notice in connection with the goods or services listed in your application for registration.

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      Getting Your Words and Other Content Out to the World

      So you've decided that you want to publish online. There is a wide range of platforms you can use to get your words, video, and other content out to the world.

      Of course, the easiest way for you to get online is to simply go to a website that allows user comments or forum posts and add your two cents to the mix. If you want a more permanent home -- and one you can control to some degree yourself -- you will want to consider whether to join a service such as Blogger, TypePad, Livejournal, or even MySpace (yes, we know it's a social networking site), that will host and manage your content for you or whether you want to create your own, independent website. Each option has its advantages and disadvantages. Here are some of the things you might want to think about in deciding which platform -- or platforms -- you will use:

      • Ease of Use Services that provide blog-hosting capabilities or social networking pages/profiles (we will call all of these services "blog-hosting providers") are often the easiest way to find a home online. These services tend to be very simple to use; everything you change and all content you add is done through the host's easy-to-use web site interface which makes it very easy to add text, photographs, or other media. The layout of your page or pages is typically created through various templates and basic formatting options, although some sites allow access to the template code for advanced customization. These sites are often free, but additional features--such as a greater ability to customize the site's format--may come at a premium. Creating your own website, on the hand, can be much more complex depending on how much customization you do. The Citizen Media Law Project site runs on Drupal, which is a free, open-source content management system with a great deal of flexibility. See the section on Creating a Website for more information about what you will need to do to create your own site.
      • Advertising: Many blog-hosting services have built-in advertising capabilities that you can implement with the click of a button. Certain sites may be affiliated with certain advertising companies (AdSense or BlogAds), that you can easily incorporate into your blog. Some of these sites, however, may restrict you to the advertising services they provide, some may not provide any, some may allow you to bring advertisements in yourself, and some may completely disallow ads. If you create your own website, you can decide for yourself what advertising you want on your pages.
      • Anonymity: Perhaps the major advantage of blog-hosting providers is that they often provide the easiest way to blog anonymously. Many of these services do not require names or credit card numbers for registration, so by signing up through an anonymizing service using a free e-mail account, you gain greater protection from being unmasked, even in the face of a subpoena to the hosting service. For more about anonymity, see the Anonymity section of this legal guide.
      • Credibility Concerns: The very ease of their use may lead many blog-hosting services to project a less professional appearance than a well-designed, customized website. Also, the web address you're given by one of these services may result in you not being taken as seriously as you would be if you had your own domain. For example, some blog-hosting services give you an address that they choose, like "www.blogservice.com/3k6jrv," or they append your name to their URL, like "www.blogservice.com/yoursite" or "yoursite.blogservice.com." One possible way around this is to register a domain name like "www.MyBlog.com" and have that redirect to your bloggingservice.com page. This allows you to promote your site using your "www.MyBlog.com" while retaining the ease and cost benefits of using a blog-hosting service. For more information on how to do this, see the section on registering a domain name in this guide.
      • Functionality: With blog-hosting services you're operating on their site, so you don't have access to all of their site code to make your page do exactly what you want it to do. It can be difficult to do much more than a straight, chronological record of posts with, perhaps, a collection of links in a side bar and a place for users to leave comments. Furthermore, while they are customizable to a degree, that customization is limited compared to the possibilities provided by a conventional website. You can find a summary of the functionality you can expect from the bigger blog-hosting services on the Using a Blog-Hosting Service page.
      • Networking: You should consider whether you are trying to reach people you already know personally, a specific community of interest, or the public at large. If you are interested in reaching only your already-existing social circle, you might want to consider some of the publishing-type functions on social networking sites, such as Facebook's "Notes" function. Another option is to use an online discussion group tool, such as Google Groups or Yahoo!. Starting a blog or website can allow you to reach a wider audience, as any Internet user can find and read your site. Of course, you can aim your blog or website at a smaller community of interest as well. Some blog-hosting services, through community identification features and other affinity services, allow you to tap into a community of users with similar or related interests.
      • Revenue Generation: Some blog-hosting services don't allow any advertising. Many that do allow advertising have deals with particular companies. While this is a good start, it can sometimes make it difficult to bring in alternate or additional advertisement systems. It's important to consider where you want to go with your blog in terms of expanding your revenue model. While a simple Google AdSense sidebar may seem fantastic early on, you should consider your future needs for expansion.
      • Terms of Use: Perhaps most important in terms of this legal guide, each of the services mentioned in this guide has extensive terms of use that govern who owns the content and data you and your users create, when the service can remove content that it deems to be problematic, and what your rights are if a dispute arises. For more information on the legal issues you should be aware of when choosing an online service, see the section on Legal Issues to Consider When Getting Online.

      As you read through this section you might be asking yourself what the difference is between a blog-hosting service and a web-hosting service. Generally speaking, a blog-hosting service will permit you to publish only a blog on their site, whereas a web-hosting service, depending on which service you choose, will allow you to create a site with almost unlimited functionality. Of course, some blogging software, such as WordPress, will allow you to create a "static blogpage" without any chronological entries as your home page. In terms of what the reader sees, there is no difference between such a site and a standard website, but you will still be limited to the functionality inherent in your blogging software.

      Once you've made a decision about what type of platform is best for you, it is time to get online. Go to one of the sections listed below for more information.

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      Legal Issues to Consider When Getting Online

      Once you decide to publish online, whether by posting in a forum, joining a discussion group, blogging, or starting your own website, there are a host of legal issues that may come into play. Understanding your legal rights -- and potential sources of liability -- can help you make an intelligent choice as to what platform you use and what precautions you take when you speak online. Some of the most important issues to consider are free speech protections, anonymity, ownership of content, and vulnerability to others' copyright claims.

      While a number of factors can influence the scope of your rights and liabilities online, the most important is often the "Terms of Use" (or "Terms and Conditions," "Terms of Service" etc.) that you agree to when you sign up for a website account, blog- or web-hosting service. Whether you read these terms or not, they form a legally binding contract between you and the service operator, and in fact govern much of the relationship between you and that site.

      It is true that these "Terms of Use" sections can appear difficult to understand: they often contain legal jargon, and may be divided into several webpages (for example, a basic "Terms of Use" page may link to a separate "Privacy Policy"). However, the more aware you are of the terms you are agreeing to, the better you will understand your legal rights and risks. Further, being aware of the differences in the terms of service for using different sites can help you find a platform for your online activities that is appropriate to your specific needs. Please see the section on Evaluating Terms of Service for a comparison of some of the more important terms you might encounter.

      Free Speech Protection

      If you live in the United States, you have a First Amendment right to engage in speech on the Internet. This legal principle allows you to use the Internet as a powerful medium to communicate facts, ideas, and opinions. However, there are two important limits on your online activities which you should be aware of:

      • Certain kinds of conduct and speech, such as defamation, are not legally protected.
      • Private website operators and hosting services can control what kind of speech appears on their site and servers.

      These limits may threaten your ability to publish certain types of content online, especially if you are making a controversial point or are criticizing somebody. You may face situations where your online activity approaches the legal "grey area" between speech that is protected and speech that is not, and offended persons may pressure your hosting service or website operator to remove material that they consider unlawful or simply do not like. Many web hosts will remove content or cancel your account if they receive a complaint or deem content offensive, assuming their terms of service permit them to do so.

      Regardless of their public stance on free speech issues, hosting services and websites that allow users to create or submit content enjoy immunity in the United States when it comes to claims of defamation, privacy, and other similar torts based on the activities of their users. This means that hosting services and website operators do not have to remove content just because someone complains about it, and they are protected from liability even when they are on notice of the potential defamatory character of the statements. For more information on this law, see our primer on the Communications Decency Act ("CDA 230").

      Unfortunately, many hosting services and website operators are not aware of CDA 230's protections. You may need to remind your hosting service of CDA 230 if they claim they must remove your material. Keep in mind, however, that your hosting service likely has the contractual right to remove your material regardless of their exposure to liability, depending on what their terms of use say.

      If you think your content might be controversial, you should think about what sort of platform or service will protect your speech most strongly. You have perhaps the least amount of protection when posting on somebody else's blog or message board, as a moderator can generally remove any post at any time. Starting your own blog gives you more room to operate, but blog-hosting sites generally impose some restrictions on the content that you can post. If you are planning to start a blog, you should carefully consult each hosting provider's terms & conditions to see which site is the most protective of free speech. The section of this guide that provides a evaluation of terms of service might also be helpful.

      You are likely to have the most freedom if you start your own website. If you are thinking of starting your own site to publish controversial material, you should consider the extent to which your hosting company will respect your freedom of speech. Sometimes, when faced with a speech-related lawsuit, hosting sites will sacrifice your freedom of speech and send you looking for a new home on the Internet. This type of action is most likely to occur with large, mainstream web hosts that have many users and a public reputation to worry about.

      If you know that you will be covering a controversial subject or expressing a controversial opinion, you may want to consider one of the hosts that make an explicit effort to respect free speech rights. Computer Tyme and Project DoD are two examples of web hosts that make it a point to protect free speech. You can find other examples of web hosts that are proud of their free speech stance on the Dedicated Hosting Guide's post "Free Speech Hosting: 11 Web Hosts That Won’t Dump You at the First Sign of Controversy."

      You should also keep in mind that your choice of a domain name registrar could have an impact on your ability to keep your site up and running in the face of legal threats.  In early 2007, CNET conducted a survey of registrars to see which were more "free speech friendly."  They found that the French registrar Gandi.net and New Orleans-based DirectNIC offered the most extensive guarantees against unnecessary domain name suspensions.

      Another category of speech that may be removed from a website is speech that allegedly infringes on somebody else's copyright. For information on this subject, please read the section regarding the Digital Millennium Copyright Act.

      Anonymity

      Many people choose to engage in online speech anonymously, or under a pseudonym, for a variety of reasons. For information on making this decision, please see our section on deciding whether to publish anonymously.

      While you have a right to engage in anonymous speech in the U.S., there are certain situations in which you can lose this protection. For one, certain sites simply do not allow their users to be anonymous. Social networking sites, for example, like Facebook, often require their users to act under their real names. Accordingly, you should consider a site's terms of service on this subject if anonymity is important to you.

      Further, others can use a lawsuit to discover the identity of an anonymous Internet user. For more information on this danger, please consult our sectio on Potential Legal Challenges to Anonymity.

      Some sites are more protective of their users' anonymity than others. Of course, virtually any service will reveal your information if served with valid legal process -- otherwise the company would be in contempt of court. But there are still ways to protect yourself. If you are choosing between blog-hosting sites, be aware that Blogger and LiveJournal (but not TypePad) do not require names or credit card numbers for registration. By signing up through an anonymizing service, like Tor, and using an anonymous e-mail account, you gain greater protection from being unmasked, even in the face of a subpoena to the web-hosting service.

      If protecting your anonymity is important to you, please consult our list of technical precautions you can take to protect your anonymity ahead of a potential lawsuit.

      Ownership of Content

      When you post your original text, video, or audio on a website, the terms and conditions of the website determine whether you keep ownership of it, whether the site owns it, or if there is a more complicated arrangement. For example, with blogging sites, it is common for you to retain ownership of the original material you post, but the blogging site has the rights to reproduce or publish the content for promotional purposes. Here is an example of such a provision from the terms of use for Six Apart, which owns the blog-hosting site TypePad:

      Six Apart does not claim ownership of the Content you upload, place or post through this Site or the Services. By uploading, placing or posting Content through this Site or the Services, you grant Six Apart a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting such Content on Six Apart's Internet properties. This license exists only for as long as you continue to be a Six Apart customer and shall be terminated at the time your Account is terminated.

      Please see the section on Evaluating Terms of Service for a comparison of some of the sites you may be considering.

      Vulnerability to Copyright Claims

      If somebody thinks that your online activities are infringing their copyright, the Digital Millennium Copyright Act may come into play. The DMCA is a federal law that establishes how website operators -- such as blog-hosting sites -- can avoid liability if a copyright holder notifies them that one of their users is engaging in infringing activity or has posted infringing content. It is common for hosting sites to have a section describing their DMCA procedure, including what a copyright holder must do to notify the hosting site of alleged infringement by a user, when the hosting site will take down user material that is alleged to be infringing, when and how the hosting site will notify the user of the DMCA allegation, and what the user can do to respond to the allegation and get their material back up on the site. By way of example, here is Google's DMCA policy.

      If you receive notification that your material has been the subject of a DMCA notice, Chilling Effects has a helpful section describing what this means and how to respond. Also please refer to our section on responding to a DMCA takedown notice if your material is removed.

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      Evaluating Terms of Service

      This section discusses and compares the key "terms of use" (or equivalent sections) you are likely to encounter when you are evaluating various online services. We've grouped these services into three general categories: social networking sites, blog-hosting services, and web-hosting services. Of course, some of these categories blend into each other, but you should be able to get a general idea of how the terms of service vary among the various types of sites and between individual sites themselves. Please keep in mind that a site's terms of use can -- and often do -- change frequently. This section is only a general guide. Be sure and read the actual terms of service before agreeing to use any of the services listed here.

      Social Networking Sites

      This section compares the terms of use for two of the most popular social networking sites, Facebook and MySpace. Facebook's terms are contained in its Terms of Use, Privacy Policy, its Content Code of Conduct, and its Copyright Policy. MySpace's terms are contained in its Terms of Use Agreement and Privacy Policy. Below are summaries of how the various sites' terms of use treat key aspects of your legal relationship with the site.

      • Age Minimum: Facebook requires its users to be 13 years old and, if they are under 18, to be in high school or college. MySpace requires its users to be 14 years old.
      • Content Limits: Facebook covers this subject in its Content Code of Conduct, MySpace in its Terms of Use Agreement. Both sites reserve the right to delete material and terminate accounts as they decide, and each also has many specific limits on content, involving material that is sexually explicit, violent, hateful, defamatory, encourages or instructs illegal activity. MySpace forbids you to post a photograph of another person without their consent, and to promote an illegal or unauthorized copy of another person's work. MySpace also forbids you from covering or obscuring banner adds on your or any other MySpace page.
      • Access to Your Personal Information: Each site has the relevant information in its privacy policy (here is Facebook's and here is MySpace's). Facebook, but not MySpace, is a licensee of the TRUSTe Privacy Program and participates in the Department of Commerce's Safe Harbor Privacy Framework. Both sites limit the situations in which they will share your personal information with other parties. Both of them will disclose information if it is required by law, and in situations involving a threat to someone's safety. Facebook also states that it may share information with other service providers to facilitate Facebook's services; in this situation, they "implement reasonable contractual and technical protections limiting the use of that information to the Facebook-specified purposes." In the event of a sale of the company, Facebook states that user information will still be covered by the Privacy Policy. MySpace does not make such a statement but does promise to notify users of any significant change in its privacy policy.
      • Ownership of Content: Both Facebook's and MySpace's terms of use explicitly state that they have no ownership of the content that their users post; however, both grant themselves license to use the user-posted content in particular ways. In both cases, the license is non-exclusive, worldwide, fully paid (MySpace's is also explicitly royalty-free), and includes a right to sublicense. MySpace's terms of use contain a useful explanation of what some of these terms mean. Facebook's terms of use also note that the license is irrevocable, perpetual, and transferable. (See the section on licensing for more information.) For both sites, what this basically means is that they can use, display, and distribute your content in almost any way they see fit. Facebook's terms also give it the right to translate the user content, prepare derivative works of it, or incorporate it into other works. Neither site limits the purposes for which it can use this license. In both cases, the license expires when the user removes their material from the site.
      • DMCA Policy: Facebook describes its procedures in its Copyright Policy, MySpace in its Terms of Use Agreement. Both describe DMCA notice procedures, but only Facebook describes counter-notice procedures. Both sites have policies of terminating the accounts of users who are repeat infringers (Facebook mentions this, not in its Copyright Policy, but in its Terms of Use).
      • Lawsuit-related Terms: Facebook's terms are governed by Delaware law, MySpace's by California law. Facebook's terms state that all disputes relating to the site (except for some involving intellectual property or injunctive relief) will be settled under arbitration; MySpace's terms state that either the user or MySpace may demand that any dispute be settled by arbitration. For any cases in court, Facebook's terms state that the case will be heard in the state or federal courts of California; MySpace's terms state that such cases will be heard in state or federal courts in Los Angeles specifically.

      Blog-Hosting Sites

      This section compares the terms of use for several of the most popular services that provide blog-hosting: Blogger, TypePad, and WordPress. Please note that each of the sites covered here is part of a larger company (in Blogger's case, Google; in TypePad's case, Six Apart; in WordPress's case, Automattic). Therefore, both companies' policies are relevant to the overall legal relationship between you and the blog-hosting site (For simplicity's sake, in this section "Blogger" will refer to both Blogger and Google; "TypePad" to both TypePad and Six Apart; and "WordPress" to both WordPress and Automattic.). For your reference, here are the key documents for each site:

      Blogger: Blogger Terms of Service, Blogger Content Policy, Google Terms of Service, Google Privacy Policy, Google DMCA Policy.

      TypePad: TypePad Terms of Services, Six Apart General Terms of Use, Six Apart Privacy Policy.

      WordPress: WordPress Terms of Service, Automattic Privacy Policy, Automattic DMCA Policy.

      Below are summaries of how the various sites' terms of use treat key aspects of your legal relationship with the site.

      • Age Minimum: Blogger requires that you are at least 13 years old. TypePad does not have an age minimum, but users under age 13 must have a parent or guardian review and complete the registration process. WordPress does not have an age minimum.
      • Content Limits: All three sites have similar rules forbidding content that is obscene, defamatory, hateful (particularly along racial or ethnic lines), violates someone else's privacy, or that you do not have the right to post. Google and TypePad, but not WordPress, forbid you to promote illegal activities. There are some small differences in how the sites describe these various limits, but all three sites reserve the right to remove content at their discretion. Therefore, if you are posting something that many people would find objectionable, even if it is not specifically forbidden in the terms of services, you should be aware that the hosting site might take down the content nonetheless. One difference between Blogger and the other sites is that it asks that explicit material be made private, and that Google may put such material behind an interstitial page warning other users.
      • Access to Your Personal Information: Each site has a privacy policy separate from its other terms (see Blogger's, TypePad's, and WordPress's). All three sites collect some personal data, and all agree not to disclose your data except in limited circumstances. For all three sites, they permit themselves to disclose your information when they are subject to valid legal process, when needed to enforce the company's terms or protect its rights, or to prevent some kind of harms to others. They also will share users' personal data as part of their business relationships. When they do this, Blogger and WordPress require the business partners to agree to their privacy policy or confidentiality agreements; TypePad gets these kind of agreements from their partner companies when it is "practical." WordPress's terms state that they will not sell or rent personally-identifying information to anyone. Blogger and TypePad's terms each have provisions describing what will happen if their company (including the data it has collected) is sold: Blogger will provide notice before such a transfer, and TypePad will keep its information subject to the same privacy policy, or to a new one that you will have the chance to consent to. Blogger has an opt-in consent for their sharing "sensitive information" (which includes confidential medical information, racial or ethnic origins, political or religious beliefs or sexuality and tied to personal information). Of the three sites, only Blogger is registered with the U.S. Department of Commerce's safe harbor program.
      • Ownership of Content: For all three sites, when you submit material to the site, you grant the site a worldwide, non-exclusive, royalty-free license (please see our section explaining transfers and licenses) to publish content you post on your blog for the purpose of promoting your content and/or the site's services. TypePad's and WordPress's licenses also give them the right to modify or adapt the content as well. TypePad's license terminates when your blog account is terminated; WordPress makes reasonable efforts, when you delete content, to remove it from the website; Blogger's terms give no indication as to when their license expires. Blogger's and TypePad's terms explicitly say that they assert no ownership claim over the content you have submitted; WordPress's terms do not say this.
      • DMCA Policy: Blogger and WordPress each have their DMCA policy in a special section (see Blogger's and WordPress's); for TypePad it is within Six Apart's General Terms of Use. All three companies may take down material in response to a notice of copyright infringement, and each will make a good-faith effort to notify the party whose allegedly-infringing content was taken down. All three declare that they might terminate the accounts of repeat copyright infringers. All three give instructions as to how to file a notice of infringement; Blogger and TypePad (but not WordPress) describe how to file a counter-notification. Unlike the other two sites, Blogger states that it may forward the notices of infringement it receives to Chilling Effects, a public interest group that protects online speech, for publication.
      • Lawsuit-related Terms: All three of the sites' terms of use are governed under California law, and all provide that any lawsuits arising out of your relationship with the company will be heard in certain courts in the San Francisco Bay Area (for TypePad and WordPress, San Francisco; for Blogger, Santa Clara County). WordPress, unlike the other two sites, provides that most claims arising out of the terms and conditions will be settled through arbitration.

      Website-Hosting Services

      There are almost as many styles of website hosting service as there are websites on the Internet. This section discusses three examples and how the various sites' terms of use treat key aspects of your legal relationship with the service provider. Go Daddy and Network Solutions are major commercial hosting services, while Project DoD is a “member supported non profit collective intent upon helping the public gain access to tools that are needed for the dissemination of information.” Go Daddy’s terms and policies include Universal Terms of Service and a Hosting Service Agreement, Network Solutions’s extensive policies are centrally indexed as part of its Service Agreement, and Project DoD’s terms are located on the main hosting page.

      • Age Minimum: Go Daddy’s age minimum is 18; Project DoD’s terms set no minimum. Network Solutions requires that registrants be 13 years old with parental permission unless they are “of legal age to enter into this agreement.”
      • Content Limits: Hosting companies tend to be aggressive in their content prohibitions; all three providers retain the right to remove content at their discretion. Project DoD’s terms are the least explicitly restrictive regarding specific types of content: “porn,” “hate sites,” “content that is targeted at offending any ethnic group,” “threaten[ing] or intimidat[ing] anyone,” “any activity which is likely to cause” harm to minors, “any action which encourages or consists of any threat of harm of any kind to any person or property,” and “inappropriate communication” on newsgroups, mailing lists, etc. are prohibited. Go Daddy’s terms prohibit “any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious” and, if you use the free ad-supported option, “content intended to advocate or advance computer hacking or cracking, gambling, illegal activity, drug paraphernalia, hate, violence or racial or ethnic intolerance.” Network Solutions' Acceptable Use Policy contains the broadest restrictions of the three, barring “material that is obscene, defamatory, libelous, unlawful, harassing, abusive, threatening, harmful, vulgar, constitutes an illegal threat, violates export control laws, hate propaganda, fraudulent material or fraudulent activity, invasive of privacy or publicity rights, profane, indecent or otherwise objectionable material of any kind or nature.” In addition, Network Solutions prohibits “material that encourages conduct that could constitute a criminal offense, gives rise to civil liability,” or holds “Network Solutions (including its affiliates) or their employees or shareholders up to public scorn, ridicule, or defamation.” Several of the Network Solutions provisions may be of particular concern to journalists.
      • Access to Your Personal Information: Project DoD’s site does not offer a privacy policy, but does require that users of its hosting services obtain express written consent of any person from whom the user collects personal information. Go Daddy and Network Solutions maintain privacy policies separate from their other terms (see Go Daddy’s and Network Solutions’s). Both Go Daddy and Network Solutions agree not to disclose your personal information except in limited circumstances. For example, they permit themselves to disclose your information when they are subject to valid legal process or as required to provide you with the services you request. Go Daddy indicates that its business partners may require that it share your personal information but that it will not do so without your explicit permission, and provides that when sending a “co-branded” email solicitation it will make clear whether Go Daddy’s own privacy policy or that of its business partner is applicable. Network Solutions does not offer similar assurances. Go Daddy provides five methods of altering your personal information or opting out of solicitations, including telephone, while Network Solutions provides only an online system. Both providers will post changes to their privacy policies 30 days in advance of the changes taking effect, but only Network Solutions invites you to notify them by email if you wish to opt out of a future change (language in the Service Agreement itself, however, indicates that the alternative to agreeing to such changes is to terminate the agreement). If you terminate your account, Go Daddy “deactivates” it but retains it “in order to resolve disputes or enforce” agreements. Go Daddy is a licensee of the TRUSTe Privacy Program and is a member of the Anti-Phishing Working Group. Both Go Daddy and Network Solutions sell “private domain name registration” that prevents your personal contact information from being accessible via the WHOIS system.
      • Ownership of Content: Network Solutions retains only a license to cache your site. Go Daddy’s agreement appears to imply that you will be transferring the copyright in your content to Go Daddy when you use its services, by stating that "Go Daddy grants to You, and You accept from Go Daddy, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your website content in connection with Go Daddy's performance or enforcement of this Agreement." We couldn't find any other language in Go Daddy's terms of service that explains why you would need a license from Go Daddy to use your own content. We suggest that you seek clarification from Go Daddy before agreeing to this strange licensing provision in their terms of service. Project DoD’s terms of service make no mention of it acquiring any rights in your content.
      • DMCA Policy: Project DoD’s terms require that you agree not to infringe copyright, trademark, patent, trade secret, or other proprietary rights but do not elaborate on the service’s DMCA policy. Go Daddy has a dedicated Trademark and/or Copyright Infringement Policy providing detailed instructions on submission of violation claims, while Network Solutions provides that information on a general Legal Notice page. Go Daddy and Network Solutions both indicate that they will take down material in response to a notice of copyright infringement; Go Daddy also indicates that it will take reasonable steps to notify the party whose allegedly-infringing content was taken down, including providing a copy of the complaint. Go Daddy indicates that it may terminate the account of repeat infringers and provides detailed instructions as to how to file a counter-notification.
      • Lawsuit-related Terms: Project DoD’s terms set no particular conditions relating to lawsuits. Both Go Daddy and Network Solutions require that you indemnify them against any liability resulting from your use of their services; both services retain the right to employ their own counsel, but Network Solutions further specifies that you remain solely responsible for their defense and must obtain their written consent to a settlement. In addition, you must agree to notify Go Daddy of a pending suit claiming you have violated a third party’s intellectual property rights. Both companies require that you confirm your indemnification in case of a lawsuit; failure to do so may be considered a breach of your terms of service. Go Daddy specifies that the agreement is governed by Arizona law and that any action arising from the agreement will be brought in Maricoa County, while Network Solutions specifies that the laws of Virginia govern the agreement and that suits under the agreement will be brought in the United States District Court in Alexandria or, if the federal courts have no jurisdiction, the state court in Fairfax County. Both Go Daddy and Network Solutions require that you waive your right to trial by jury, but neither requires arbitration.
      • Service Availability: Project DoD’s terms make no mention of service availability, and Network Solutions emphatically disclaims any promises on the topic. Go Daddy, on the other hand, indicates that – subject to various rather broad conditions – it “shall attempt to provide” service at all times and that if it fails – by its own calculations – to provide service for 99.9% of a given month, you can request a credit of 5% of your monthly fee.

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      Starting Your Own Website

      Starting your own website may be the most appealing option for getting your words and content out to the world, particularly if you are planning to engage in journalism or otherwise need a site that can grow in size or complexity. There are several things you will need to do to create your own website:

      1. Choose and register a domain name

      2. Decide how and where to host your website

      3. Develop and publish your website

      Choosing and Registering a Domain Name

      The first step in establishing a website is to register a domain name. While Google search has, perhaps, mitigated the importance of having a catchy domain name, the ability to reach a site quickly may prove a marketing boon, so a domain name should preferably be short, catchy, and intuitive if at all possible. If your online activities are being done as a part of a business, it probably makes sense to select a domain name that is related to the name of your business. If you haven't already chosen a business name, see the section on Trademark Law and Naming Your Business for more information.

      Many people recommend choosing a URL ending in .com as opposed to .org or .net if at all possible because that is what people tend to put at the end of a web address by default, although dot org endings can emphasize, if appropriate, your site's nonprofit status or the public service nature of your work. Also, if your site is directed solely towards people in your own country, a country-specific domain name may be cheaper to register.

      You can check the availability of a domain name through domain registration companies such as Network Solutions, 1&1 Internet, or Dotster. This is hardly an exhaustive list; most domain registration companies will allow you to check the availability of names on their site (and may also provide helpful suggestions if your preferred name is taken).

      Once you have settled on a domain name, you will need to register it through a domain registration service. Wikipedia has a list of the largest domain registrars that you can use to as a starting point. Some of the website hosting companies discussed in this guide might also be able to register a domain name for you as part of their hosting package. Keep in mind, however, that it is generally not advisable to transfer control of your domain name to your web host; most hosting services have no obligation to release the domain name should a you decide to switch to another hosting company.

      How and Where to Host Your Website

      If you are technically savvy and have the necessary equipment, you can host your website on a home or business server that you control. For most people, however, the choice will be between free and paid commercial website hosting services. While free hosts sound attractive, there are several major (often intolerable) disadvantages: first, many have unattractive and distracting advertising, such as pop-ups; second, many are plagued by servers that often crash and have customer service reps that are unresponsive to complaints or requests for technical help; and third, they have a reputation for going out of business without warning. (They are, nevertheless, free.)

      There are also a large number of paid hosting companies that provide service of varying quality. Some hosting services charge a flat fee for hosting (with certain file storage and bandwidth caps), while other hosting services have flexible charges based on bandwidth used. The best paid services, however, are more stable than free companies and will provide you with needed technical support. When looking for a web hosting company, consider:

      • Bandwidth: This is a measure of data transfer from a website over a period of time (usually monthly), typically based on users accessing the site or downloading content. Bandwidth allocation varies by type of service (free services typically have the lowest bandwidth caps), with paid services often having tiered pricing based on bandwidth usage.
      • File Storage: This is a measure of the size of files comprising your website that a hosting service will store. While most free hosting services will provide enough storage for most text-based websites, adding photos, video and other multimedia or large file types will typically necessitate something greater than the storage amounts included in basic offerings.
      • Technical Support: Web hosting companies advertise the availability of their tech support, often offering around-the-clock assistance. Some experts recommend calling at night or on the weekends before signing up to see if the phones are actually answered, as well as sending an e-mail with a routine question to gauge the length of time before help is proffered.
      • Uptime Percentage: This is the amount of time a company’s servers are operational, measured as a percentage over a certain period of time (the higher the percentage, the more often the servers are available and working). A number of independent sites track uptime percentages, including Freehosting.net.
      • Surge in Traffic: It is important that a web host have plans in place in case of a sudden increase in numbers of visitors to a site (which may lead a site to crash).
      • FTP Access: FTP (otherwise known as File Transfer Protocol) is the most common way to upload files to a website; most hosting services offer uploading via this protocol, and it is important to know how to access it for efficient uploading.
      • E-mail: This allows you to associate e-mail addresses to your domain name (i.e. to have an e-mail address that reads yourname@domain.com). Web hosts vary as to the number of e-mail addresses allowed and the e-mail functionality they provide.
      • Other Features: Common Gateway Interface technology (CGI) and PHP are functionalities that allow more sophisticated site developers to add dynamic content to a site; some hosts have ready-made CGI features or can add them for you. Additionally, some hosts have Microsoft Frontpage extensions that allow beginners to add features similar to CGI (although in a more limited and failure-prone way). You might also want to shop for a host whose software supports video or other multimedia content.
      • Price: Depending on the amount of space, bandwidth, and functionality you need, the fee can range from extremely low to quite high. Most hosting services offer a range of plans that will provide you with more or less space or features. Which of these plans is best will depend on your particular needs. Your hosting plan will come with a certain amount of bandwidth; it is prudent to determine the charges you will incur should you unexpectedly increase your bandwidth (a possibility if you unexpectedly become very popular or break a hot story).

      Developing and Publishing Your Website

      Most guides to creating webpages recommend that you learn at least some HTML (or hire someone who knows it). While programs like Dreamweaver and Front Page will allow you to create webpages without knowing HTML, having some working knowledge of the subject is the best way to ensure that your page looks how you intend it to be, that errors aren't introduced in the process of translating your page into HTML, and that your page doesn't contain unnecessary code that will eat up your bandwidth.

      If you want to learn HTML, there are a number of on-line tutorials that treat the subject in varying depths. J-Learning has a tutorial meant specifically for citizen journalists that covers XHTML, which combines traditional HTML with a newer technology, XML. HTML Goodies and Webmonkey have HTML tutorials for beginners.

      If you do not want to learn HTML, you might consider building your webpage with a web page design program, roughly equivalent to a word processor. These include Macromedia Dreamweaver, Adobe GoLive, Microsoft FrontPage, and Microsoft Publisher, and they allow you to type in text and add pictures using the types of graphical icons and familiar applications that are found in most software suites. While this has obvious advantages, they also have a tendency to add unnecessary and unwanted code and to appear quite different on the program's preview screen than on the finished webpage. If you know some HTML code, however, it is possible to use these programs to do your initial design and then to edit the HTML manually.

      Some web-hosts also provide their own website building software, which can make it very easy to create your site. If you are using your web-host's software, all you generally need to do to publish or upload your files to the web is hit "publish" or "submit." If you are using another type of software to create your site, the process might be slightly more complicated. To publish from Microsoft Front Page, the Front Page extensions must be enabled by your web host; many do this automatically, however some require that you specifically ask. If the extensions are enabled, you need only click the "Publish to Web" button and follow the instructions given, which will mean entering your domain name and the user name and password given to you by your web-host.

      Other software will probably require you to install FTP software which will transfer files from your computer to the web host. WS_FTP is one such program.

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      Using a Blog-Hosting Service

      If you're looking to start a blog, a blog-hosting service may be a good place for an amateur, or sometimes even a professional, to launch one. If you're interested in getting online as quickly as possible, and don't need a formal blog, you might also want to consider using a social networking site, such as Facebook or MySpace, which will allow you to create a blog-like profile page. If you haven't yet reviewed the section of this guide on evaluating different online platforms, you should do so before committing to use one of these services.

      There are several factors to consider before choosing a blog-hosting service, such as cost, permitted advertising, customization, and terms of use. Choose carefully, as it is difficult to switch blog-hosting services later and maintain the same readership.

      There are a number of blog-hosting services available. For the sake of brevity this section discuss the three most popular services: Blogger, TypePad, and WordPress. We do not endorse any of these services. You should select a blog-hosting service that meets your specific needs. Many of the services' elements below are marked with a + for a positive aspect of the service, - for a negative, and = for an aspect that is neutral.

      Please keep in mind that a site's terms of use can -- and often do -- change frequently. Be sure and read the actual terms of service before agreeing to use any of the services listed here.

      Blogger

      Blogger is one of the oldest and largest blogging sites around and is where most people will probably start their first blog. If you want to see what blogging is all about or if you are anxious to start blogging now, Blogger may be a good fit for you. If you want a lot of customization and flexibility, however, you may want to consider other sites. On the other hand, Blogger is reliable, flexible, and its Terms of Service provide a journalism-friendly approach to content removal.

      Functionality and Ease-of-Use:

      + Very easy: Blogger claims that you can expect to start blogging within ten minutes of your initial visit to the site.

      + Template access: Blogger allows access to template codes.

      - Categories: Blogger lacks any method to categorize posts other than by date.

      - Blogging only: Blogger doesn't support non-blog pages, files storage, etc. Just blogs.

      = Age: According to Blogger's Terms of Service, you must be at least 13 years old to use Blogger.

      = Customization: While it is easy to set up one of the basic, plain templates, more significant customization takes quite a bit of HTML and CSS knowledge. The available templates are attractive, but due to Blogger's popularity, they all look familiar, and it may be difficult to make a name for your blog if it looks just like a million others.

      Features:

      • Blogs are given a .blogspot.com subdomain. If you create a blog called Blog123, your address would be blog123.blogspot.com.
      • Blogger allows you to use its software on your own website. For example, if you own "www.MyBlog.com," you could use Blogger like normal but then send the Blogger files to your website so that a visit to MyBlog.com doesn't just redirect to your Blogger page, but actually displays your blog on MyBlog.com. Using Blogger this way -- when combined with some quality customization -- gives you the same ease-of-use, but you gain credibility because of you are set apart from the masses who are using Blogger on its ordinary platform.
      • Blogger allows you to easily upload video to incorporate into your blog either as an embedded clip or a regular videocast.
      • AudioBlogger is a great feature that allows you to dial a number on your phone and easily post audio recordings to your blog.
      • There are no traffic or storage limits.
      • The Google Toolbar has a feature that allows users with Blogger accounts to post links directly to their blogs.

      Terms of Service: Here are portions of Blogger's terms of service that may be relevant to journalists. Each bulleted summary is followed by the actual text in smaller print. Blogger is owned by Google, therefore the Google Terms of Service will be applied to Blogger users as well.

      From Google's Terms of Service

      • Google reserves the right to remove whatever content it wants, whenever it wants from any of its sites. Fortunately, through a terms of service document specifically created for Blogger (see below), it clarifies how it treats content in that area of its services:
      Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.

      From Blogger's Content Policy

      • Blogger makes their respect for freedom of speech more overt than other sites:
      We respect our users' ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression.
      • Users can flag content they deem offensive. If Blogger finds the flagged material offensive, it may place a warning page before your blog, refrain from publicizing your blog on its main page, or remove it. All sites reserve the right to remove content. It is rare that a service provider will investigate user claims in this manner and pursue remedies other than removal:
      Hate speech and other objectionable content may be flagged for review by our users. When this happens, Blogger reserves the right to warn others of the potentially offensive content through the use of a warning page. Other content, such as adult material, may be depublicized so that it does not appear in frequently-trafficked places such as the homepage of Blogger.com. Just because a given blog has received votes through this mechanism does not mean that any particular action will be taken. For example, blogs that are flagged because readers disagree with the political opinions expressed in a blog will not be acted upon.
      • Blogger is not hasty to remove content on a simple notice of a yet unproven defamation accusation:
      Users should not publish any content that is unlawful, defamatory, and fraudulent. Note that an allegation of defamatory expression, in and of itself, does not establish defamation. The truth or falsehood of a bit of expression is a key element in establishing defamation, and we are not in a position to make that sort of fact-based judgment. That said, if we have reason to believe that a particular statement is defamatory (a court order, for example), we will remove that statement.
      • Blogger responds to copyright complaints in the manner prescribed by the Digital Millenium Copyright Act:
      It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). If we remove a blog/post or disable access to a blog to comply with the DMCA, we will make a good-faith attempt to contact the owner or administrator of each affected site so that they may make a counter notification pursuant to section 512(g)(2) and (3) of the DMCA. It is our policy to document all notices of alleged infringement on which we act. A copy of the notice, with any personally identifying information removed, will be sent to a third party who will make it available to the public. Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice may be sent to a third-party partner for publication and annotation. As such, your letter (with your personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication.
       
      The administrator of an affected site or the provider of affected content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When we receive a counter notification, we may reinstate the material in question. To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, if you are not sure whether certain material infringes the copyrights of others, we suggest that you first contact an attorney. A sample counter notification may be found at http://www.chillingeffects.org/dmca/counter512.pdf.

      Advertising: Blogger automatically integrates with Google AdSense. It also allows access to the blog template code to enable use of ads from different sources. This functionality may make Blogger the most desirable of the free sites for traditional and non-traditional journalists seeking to make money from their blogs.

      Cost: All of Blogger's services are free.

      Example Sites: outonthestoop.blogspot.com; googleearthlings.blogspot.com

      TypePad

      TypePad is popular among professionals, but isn't free and doesn't cater to beginners. There are loads of features, but make sure to check out TypePad's price comparison chart, so that you know what you're paying for. If you are familiar with other services offered by TypePad's parent company, Six Apart, you may have an idea of how TypePad works. Six Apart is the force behind Live Journal and, perhaps less well-known, Movable Type. Movable Type is the blogging program TypePad utilizes, which you can download and install on your web server for free (as long as it's for non-commercial use). See Movable Type's website for more information.

      Functionality and Ease-of-Use:

      + Customization: TypePad has extensive customization options, including the ability to create sidebars. However, the full array of possibilities is only available to those with the most expensive accounts. Customization is complicated, but does not require learning a programming language.

      + Code Access: TypePad allows access to the template code, but only to the most expensive accounts.

      Features: The availability of these features will vary depending on which type of account you sign up for. Some are available to all levels, while others may only be accessed by those with the highest-cost memberships:

      • Typelists makes it easy to build lists and connect items on those lists with web sites without changing anything in your templates.
      • Categories allow you or your reader to view certain groupings of posts.
      • Domain name forwarding is available.
      • They will automatically notify Google, Technorati, and other blog search engines when your blog is updated.
      • Lots of anti-spam tools.
      • Blog by email.
      • Blog with certain cell phones.
      • Photo galleries (as opposed to normal picture-in-post functionality).
      • Storage limits based on membership range from 100MB to 3GB.
      • Bandwidth limits based on membership range from 2GB to 20GB.

      Terms of Service: Here are portions of TypePad's terms of service that may apply to journalists. Each bulleted summary is followed by the text in smaller print.

      From TypePad's Terms of Use

      • If the credit card you use expires, TypePad may delete all of your information:
      If your credit card is invalid for any reason, the Service may be canceled and all the information contained within deleted permanently. Six Apart accepts no liability for information that is deleted due to an invalid credit card.
      • TypePad can delete your account and any of your content at its discretion, without prior notice. Any money you've paid for an account will not be refunded:
      You agree Six Apart, in its sole discretion, may terminate your password, and/or account, and remove and discard any Content within the Service (including, but not limited to your Blog Site if you are an Account Holder), for any reason, including and without limitation, the lack of use, or if Six Apart believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Any contracts, verbal or written or assumed, in conjunction with your deleted Blog Site (as applicable) and all its parts, at Six Apart's discretion, will be terminated as well. Six Apart may also in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Six Apart may immediately deactivate or delete your Blog Site, as applicable, and all related information and files. Six Apart reserves the right to bar any further access to such files or the Service. You agree that Six Apart shall not be liable to you or any third-party for any termination of your access to the Service. Paid accounts that are terminated will not be refunded.
      • TypePad will disclose (and, alternatively, preserve) your content in response to legally valid requests for documents from parties in litigation and in other contexts when it believes that disclosure is necessary to protect its rights or respond to claims that your content violates the rights of others:
      You acknowledge and agree that Six Apart may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Six Apart, its users and the public.
      • Offensive material is not allowed:
      You agree that you will not: (a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable.
      • If you are a high-level user (one that pays for an expensive membership) and utilize TypePad's proprietary advertising services, the company reserves the right to withhold money from you for various fees. Also, there are several ways that you can lose your ability to access, use, or withdraw your reported earnings:
      (You can lose your ability to access, use, or withdraw your earnings for reasons including, but not limited to): (a) If you in any way violate or otherwise breach this TOS and/or the TOU; (b) If you engage in any activity intended to, or the result of which could or would, defraud Six Apart or any third party, including, without limitation, with respect to any advertising activity arising on your Blog Site, taking any action to inflate or otherwise manipulate traffic or click-through counts from your Blog Site to participating advertisers or merchants through the use of any manual or automating device, program, robot or other automated means, or otherwise permitting or allowing any third party to conduct the foregoing, including via repeated manual clicks. You understand and agree that repeating clicks produced manually or automated clicks produced by robots, programs, or other artificial automated devices or means that do not represent, or based upon evidence available to Six Apart, do not appear to represent, an actual individual live web user conducting a bona-fide click-through transaction will not generate Earnings; (c) If your account is suspended for not making a required membership subscription payment; (f) If Six Apart ceases providing the Commerce Services in its sole discretion and you fail to utilize or otherwise withdraw your reported Earnings in the time period permitted by Six Apart. . . . Six Apart will charge you a fee for providing the Commerce Services, which may include, or be in addition to, any fees charged by any third party to Six Apart, and which may change from time to time, in each case at Six Apart's sole discretion.

      Advertising: TypePad offers two easy advertising tools to its users with the two most expensive accounts (Pro and Premium): TipJar and TypePad TextAds. TipJar allows you to earn "tips" (donations) when users fill out a form. TextAds functions very similarly to Google Adsense. If these features are the only reason why you're thinking about an account upgrade, consider that TypePad allows you to bring in ads on your own, and that the combination of TipJar and TextAds functions similarly to having AdSense and PayPal donations button (for which you'll only pay PayPal per transaction).

      Cost: There are four levels: Basic, Plus, Pro, and Premium. The monthly charge for these accounts ranges from $4.95 to $29.95.

      Examples Sites: endicottstudio.typepad.com; obscurestore.typepad.com

      WordPress

      WordPress, like Blogger, is free and easy to use. Unlike Blogger, WordPress imposes more restrictions on its users and offers certain upgrades for a fee. WordPress also makes an open-source, blogging program that you can install on your own web server if you have one, much like Six Apart's Movable Type (see description of TypePad above). You can find information about this aspect of WordPress at http://www.wordpress.org. This downloadable software is substantially more flexible than the service offered through WordPress.com.

      Functionality and Ease-of-Use:

      + Non-Blog Pages: Ability to create web pages that aren't blogs (like an "About Me" page).

      - Regulation: More restrictions on controversial content and marketing than most sites.

      = Code Access: No access to template codes unless you purchase the upgrade.

      Features:

      • Each post gets a neat URL that is search engine friendly.
      • Blog posts are searchable (this is actually uncommon).
      • Great categorization and tagging capability. By taking advantage of the tagging system, you can more easily become a part of the WordPress blogging community.
      • Widgets allow you to bring in certain content to your page without messing with the code or template. Sidebar widgets include del.icio.us, Flickr, and Meebo.
      • Easy import/export features when migrating from another site or taking your blog with you when you leave.
      • They require a small amount of personal information to create an account: a username and email address.
      • WordPress will register a domain name for you at a relatively low cost. This is great if you want the ease of use that WordPress provides, but do not like the yourname.wordpress.com site for credibility/distinctiveness reasons. There is one drawback to this approach: the domain name can ONLY be used for your WordPress blog.
      • Storage is unlimited for posts, pages, and comments. Space for images and other files is capped at 50MB, but WordPress offers upgrades from 1GB-10GB for a price.

      Terms of Service: Here are portions of WordPress's terms of service that may be relevant to journalists. Each bulleted summary is followed by the actual text in smaller print.

      From WordPress's Terms of Service

      • WordPress frowns on misleading promotion of your blog or its posts:
      You must not describe or assign keywords to your blog in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Automattic may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Automattic liability.
      • You may not drive traffic to or boost search engine results for third party sites:
      the Content is not spam, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing).
      • WordPress reserves the right to remove content and terminate accounts:
      Without limiting any of those representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid.
      Termination. Automattic may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your WordPress.com account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a VIP Services account, such account can only be terminated by Automattic if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Automattic’s notice to you thereof.
      If you believe that material located on or linked to by WordPress.com violates your copyright, you are encouraged to notify Automattic in accordance with Automattic’s Digital Millennium Copyright Act (”DMCA”) Policy. Automattic will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. If Automattic takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Automattic.

      Advertising: Users cannot add Adsense, Yahoo, Chitika and other ads services to their blogs. WordPress will block advertisements that are inserted when using an external blogging program. WordPress also prohibits:

      • sponsored/paid posts including PayPerPost and ReviewMe;
      • sponsored/paid links; and
      • text ads.

      A discrete link to your business in the sidebar or an "About" page is permitted. WordPress also allows one discreet link to Amazon per blog, so long as the primary purpose of the blog is not to drive traffic to the affiliate program.

      In the site's own words:

      "WordPress has a very low tolerance for blogs created purely for search engine optimization or commercial purposes, machine-generated blogs, and will continue to nuke them, so if that’s what you’re interested in WordPress.com is not for you."

      Taken from http://faq.wordpress.com/2005/12/08/adsense/

      Cost: WordPress will host your blog for free, but requires a paid upgrade for certain services.

      Example Site: http://www.problogger.net

      Jurisdiction: 

      Subject Area: 

      Deciding Whether and How to be Anonymous

      Putting aside the possible legal challenges to anonymity for the time being, there are some practical considerations that you should think about before deciding to carry out your online publishing activities anonymously or pseudonymously.

      There are good reasons to publish your blog or website under your real name. Using your real name tends to increase your credibility. Many readers will be inclined to discount anything published anonymously, and for other readers it creates a presumption of unreliability that can be difficult to overcome. You may want to distance yourself from these assumptions, even if you find them unjustifiable. Using your real name may also help you develop a reputation as a quality provider of information and/or commentary. Finally, using your real name promotes transparency. If people know who you are, it is easier for them to determine whether you have a potential bias or conflict of interest when it comes to certain topics.

      On the other hand, you may have compelling reasons to publish your blog or website anonymously or pseudonymously. Publishing anonymously may protect you from retaliation by those who don't like what you write. This is a real possibility if you write about those with power over you such as your employer or engage in whistleblower activity. You could be harassed or fired from your job for what you write, even if the person who objects to your speech does not have a valid legal claim against you. In some places, what you write could threaten your safety or lead to your arrest and detention by political authorities. In these situations, there are good reasons for hiding your online identity. Alternatively, you may want to engage in lively debate on local politics without being judged based on widely known personal attributes, or you might want to discuss sensitive topics without being discovered by friends and family. These reasons, while less dramatic, are no less justifiable.

      As we discuss in the Potential Legal Challenges to Anonymity section of this guide, you should be aware that publishing anonymously or pseudonymously will not necessarily stop someone from bringing a "John Doe" lawsuit against you and using court procedures to obtain your identity from your Internet service provider or web host. It is a misconception that you can act with impunity when you post anonymously or pseudonymously. However, the law does provide some protection for anonymous online speech. You can read more about these protections in the section on Legal Protections for Anonymous Speech.

      In the end, this is a personal decision, and you will have to decide based on your own preferences and assessment of the relevant risks.

      The legal guide sections listed below deal with legal and technical issues surrounding anonymous speech online:


      Jurisdiction: 

      Subject Area: 

      How to Maintain Your Anonymity Online

      There are a number of excellent resources that you can use to learn how to maintain your anonymity online. The details of these strategies are beyond the scope of this guide, but we provide links to some of them below. Keep in mind that there are two broad categories of techniques for maintaining anonymity online:

      First, there are tactics relating to the kind of information that you reveal on your website or blog. These tactics will not disguise your IP address, and this information could be disclosed if someone subpoenas your ISP, web host, or email provider.

      Second, there are technical means and other strategies you can use to disguise your IP address or make it difficult for someone to associate a specific IP address with you personally. If you carry these out successfully, then information about your identity will not be available, even if someone subpoenas your ISP, web host, or email provider. Note, however, that successfully disguising your IP address takes a great deal of care and involves some hassles and inconvenience.

      Here are some links to useful resources on the topic:

      • Blog Safer Wiki - a multilingual resource with country-specific guides for Saudi Arabia, Iran, China, Malaysia and Zimbabwe.
      • Domains By Proxy - a service that registers a domain name for you without providing your personal information to the domain registrar; note, however, that companies like this may have to reveal your identity if they are subject to a subpoena.
      • Tor - a free anonymizing service that helps you disguise your IP address, generally by requesting a page on your behalf through a network of proxy servers.
      • Privoxy - a program often used in conjunction with Tor that blocks cookies and other tracking software.

      Jurisdiction: 

      Subject Area: 

      Potential Legal Challenges to Anonymity

      A common misconception is that you cannot be sued for blogging or posting material anonymously or pseudonymously because your identity is forever hidden. In fact, there are legal procedures that individuals, companies, and the government can use to discover the identity of an anonymous or pseudonymous online speaker under certain circumstances.

      In the civil litigation context, the legal system provides for a kind of lawsuit called a "John Doe" lawsuit, in which a plaintiff sues an unknown defendant -- for example, an anonymous blogger who allegedly libeled the plaintiff or revealed the plaintiff's confidential information. These suits may also be called "Jane Doe" or "Jean Doe" suits if it appears that the anonymous defendant is female. Once a party has filed a John Doe lawsuit, the rules of court procedure give the plaintiff tools to uncover the defendant's identity.

      The most important of these tools is a subpoena: a legal order commanding the person or organization named in the subpoena to provide information or testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding. In this type of case, the party issuing the subpoena usually demands that your Internet service provider (ISP), email provider, or web host produce documents or information that will reveal your identity.

      You should be aware that sometimes plaintiffs file John Doe lawsuits against anonymous Internet users only to expose their identities, not because they want to pursue a legally valid claim against them.

      How can you protect yourself from being exposed through a lawsuit?

      There are technical precautions you can take to protect your anonymity, so that, even if someone issues a subpoena to your ISP, email provider, or web host, those sources will not have useful information about your identity. Please see the How to Maintain Your Anonymity Online section of this guide for details.

      You also have the legal right to contest a subpoena seeking to reveal your identity. You usually do this by filing a "motion to quash" the subpoena, which is discussed below.

      What happens when a subpoena is issued?

      What happens when a subpoena to reveal your identity is issued depends a lot on whether you know about it. If you don't know about the subpoena, then you cannot challenge it in court, and your service provider may give up your identity without much of a fight. Luckily, the chances of you knowing about the subpoena are good (or at least they are getting better). If you find out about a subpoena demanding the disclosure of your identity, you should consider hiring a lawyer and moving to "quash" (i.e., challenge) the subpoena.

      How will you know about the subpoena?

      The hard reality is that there is no assurance that you will know when a subpoena is issued.

      Nevertheless, it is becoming more and more common for service providers to notify their clients before responding to subpoenas that ask for identifying information. You might check with your ISP or e-mail service about its policy ahead of time. Some service providers have clauses in their terms of use or privacy policy stating that they make efforts to notify customers before responding to subpoenas of this kind. Please see the section entitled Getting Your Words and Other Content Out to the World for details on locating a web host or service provider that helps protect your anonymity. In the past, some ISPs have even taken it upon themselves to challenge subpoenas asking for identifying information about their clients.

      Furthermore, courts in many states require that a plaintiff make reasonable efforts to notify the anonymous Internet speaker before obtaining disclosure of his or her identity. Unfortunately, this requirement only comes up if the plaintiff is required by state procedure to request permission from a court in order to issue the subpoena (which is often the case when a subpoena is issued very early in a lawsuit). The required efforts often including posting a notice about the subpoena on the website or message board where the complained-of statements appeared. Alternatively, the plaintiff may ask the service provider to send a notice to the anonymous poster (the ISP, email provider, or web host usually will have the email and/or physical address of the client, hence the reason for the subpoena in the first place).

      Keep in mind, however, that neither of these practices is universal, and there is no guarantee that you will be notified before your identity is disclosed.

      If you are notified about a subpoena, how can you protect your identity?

      In general, judges do not review subpoenas as they are issued. Instead, you need to file a motion to block (or, in legal jargon, "quash") the subpoena.

      The amount of time you have to file a motion to quash the subpoena is usually short -- typically around seven days -- so you need to move fast. You should ask your ISP or other provider for a copy of the subpoena, so that you can determine the court under whose authority the subpoena was issued. Assuming you want to challenge the subpoena, you should also contact a lawyer who can file a motion to quash with that court. Because of the generally short time limit for responding to subpoenas, your lawyer may need to file a request for an extension of time to file the motion.

      In finding a lawyer to represent you, one option is to contact a local lawyer. Also, there are certain public interest groups, such as Public Citizen and the Electronic Frontier Foundation, that advocate for free speech online and might be interested in assisting you.

      You may want to point your lawyer in the direction of the following cases, which are highly protective of Internet anonymity:

      You may also want to show your lawyer the following briefs for purposes of crafting legal arguments:

      For more information on the legal standards applied by courts before allowing a plaintiff to uncover an Internet speaker's identity, see the Legal Protections for Anonymous Speech section and your relevant state law section on anonymous speech in this guide.

      Keep in mind that it might not always be worth it to challenge a subpoena seeking disclosure of your identity. It can be a costly process involving high legal fees, and there is no guarantee that hiring a lawyer will enable you to successfully challenge the subpoena. You should think carefully about whether your anonymity is worth the time and money required to protect it.

      Because of these risks and costs associated with fighting a subpoena, you are better off taking steps to minimize the identifying information you provide about yourself if anonymomity is important to you. You'll find some useful information in this regard in the How to Maintain Your Anonymity Online section of the guide.

      For more information on responding to subpoenas, see the section on Responding to Subpoenas in this guide. For information about defending against lawsuits generally, please see the Responding to Legal Threats section.

      Jurisdiction: 

      Subject Area: 

      Legal Protections for Anonymous Speech

      Say that you receive notice that a someone has subpoenaed your ISP for information about your identity, and you move to quash (i.e., block or challenge) the subpoena. How will a court decide whether or not to allow the plaintiff to uncover your identity? This is a complex question that quickly brings us into a realm full of technical legal language and concepts. For those interested, this section and the State Law: Legal Protections for Anonymous Speech section that go with it delve into some of the details. If this makes your eyes glaze over, don't worry -- this section could be a good place for your lawyer to begin research.

      Courts have recognized that the right to speak anonymously and pseudonymously is part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. At the same time, those harmed by unlawful anonymous speech -- whether by defamation, misappropriation of trade secrets, or whatever else -- also have a right to seek compensation for their injury. When considering a subpoena or other discovery request seeking to unmask a speaker, courts attempt to balance these two competing rights.

      While the courts in various jurisdictions have struck this balance in different ways, there is a growing consensus among courts that a would-be plaintiff must make a substantial legal and factual showing that his/her claim has merit before a court will unmask an anonymous or pseudonymous Internet speaker. In other words, these courts require a plaintiff trying to unmask an Internet speaker to bring forward a substantial amount of evidence to support the underlying legal claim (i.e., evidence that the anonymous speaker actually defamed the plaintiff or committed some other unlawful act that injured the plaintiff). These courts also impose a requirement that the plaintiff provide notice to the speaker whose identity is sought and an adequate opportunity to respond.  

      Here are some of the cases applying a heightened standard: Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Solers, Inc. v. Doe, 977 A.2d 941, 954-57 (D.C. 2009); Sinclair v. TubeSockTedD, 2009 WL 320408, at *2 (D.D.C. Feb. 10, 2009); A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010); Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009); Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009); Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008); Doe I v. Individuals, 561 F. Supp. 2d 249, 254-56 (D. Conn. 2008); Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp.2d 1205, 1216 (D. Nev. 2008); Mobilisa v. Doe, 170 P.3d 712, 720-21 (Ariz. Ct. App. 2007); Greenbaum v. Google, 845 N.Y.S.2d 695, 698-99 (N.Y. Sup. Ct. 2007); In re Does 1-10, 242 S.W.3d 805, 822-23 (Tex. Ct. App. 2007); Reunion Indus. v. Doe, 2007 WL 1453491 (Penn. Ct. Comm. Pleas Mar. 5, 2007); McMann v. Doe, 460 F. Supp.2d 259, 268 (D. Mass. 2006); Best Western Int'l v. Doe, 2006 WL 2091695, at * (D. Ariz. 2006); Highfields Capital Mgmt. v. Doe, 385 F. Supp.2d 969, 975-76 (N.D. Cal. 2005); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

      There are some older cases that allowed a would-be plaintiff to uncover the identity of a John Doe defendant without making a substantial evidentiary showing that the claim has merit, but subsequent cases have largely abandoned these approaches. See, e.g. In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000) (requiring the plaintiff to show only that his claim was made in good faith, and not out of an intent to harass); Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (applying a "motion to dismiss" standard that requires only that a plaintiff make allegations that, if true, would entitle her to a legal remedy).

      Courts generally apply a different test when the party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit. These courts adopt a four-part test that requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. See, e.g., McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010); Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009); Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).

      Keep in mind that the cases discussed on this page are defamation cases and other lawsuits where speech played a critical role. Most copyright infringement lawsuits, especially those relating to peer-to-peer file sharing, fit into an entirely different category, even though they sometimes involve anonymous actors. According to an important case in this area, Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004), peer-to-peer file sharing "qualifies as speech, but only to a degree." Courts in copyright cases thus tend to impose relatively lenient standards on plaintiffs before allowing discovery of an anonymous defendant's identity. Additionally, it usually is relatively easy for a plaintiff in a copyright case to provide basic evidence to support its claim. Therefore, if you are involved in a copyright infringement case, you should not assume that the First Amendment will protect our identity, even if you are in a state that applies a high-burden standard in defamation cases.

      Another wrinkle: be aware that a plaintiff may try to disguise a defamation claim by characterizing it as a copyright infringement claim in order to take advantage of more lenient standards for uncovering your identity. If you get sued for copyright infringement, but you believe that the dispute is really about your criticism of the plaintiff, you should bring this to the attention of your lawyer and/or the court. In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.com, 2007 WL 4335441 (D. Idaho 2007), provides a good example of a plaintiff trying to use copyright law to get around First Amendment protection for anonymous speech.

      Make sure to check your state's page for cases in your jurisdiction on the First Amendment right to anonymous/pseudonymous speech.

      Jurisdiction: 

      Subject Area: 

      State Law: Legal Protections for Anonymous Speech

      Choose your state from the list below for more information on the legal protections for anonymous speech in your state:

      Subject Area: 

      Legal Protections for Anonymous Speech in Arizona

      Note: This page covers information specific to Arizona. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      In both cases where Arizona courts have considered attempts to unmask an anonymous online speaker, Arizona courts have applied tests that are highly protective of anonymous speech. The two cases are discussed below:

      Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007)
      In mid-2005, Mobilisa, Inc., a Washington company, filed a John Doe lawsuit in Washington state court. According to court documents, Mobilisa's CEO sent a personal email through his company email account to a woman with whom he was having a personal relationship. Days later, an anonymous person using the email address "theanonymousemail.com" circulated a copy of the CEO's personal email to various members of Mobilisa's management team with the subject line: "Is this a company you want to work for?" Mobilisa filed suit, asserting that the anonymous emailer had violated two federal statutes that make it illegal to "hack" electronic communications. The crux of the claim was that the anonymous defendant accessed Mobilisa's protected computer systems and email accounts without authorization. In August 2005, Mobilisa filed an application in Arizona state court requesting the court to issue a subpoena compelling the anonymous defendant's email service to identify him.

      In deciding whether to compel discovery, the trial court applied the "summary judgment" test from Doe v. Cahill, 884 A.2d 451 (Del. 2005). This standard requires a plaintiff to make reasonable efforts to notify the anonymous poster about the pending discovery request and to put forward sufficient evidence for each element of its claim (other than those that are dependent on knowing the identity of the defendant). Initially, the court ruled against Mobilisa, but several months later it determined that Mobilisa had made a sufficient showing to justify unmasking the anonymous defendant. The email provider and anonymous defendant appealed.

      On appeal,the Arizona Court of Appeals adopted the "summary judgment plus" standard set forth in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). There are two levels to this test. First, as in the summary judgment test, the plaintiff must put forward sufficient evidence to support its claim. Second, if the plaintiff has put forward enough evidence, the court then must independently balance the strength of the plaintiff's case and need for disclosure against the strength of the speaker's claim to First Amendment protection. Only if the plaintiff's interests outweigh the First Amendment values at stake should the court order disclosure. The appellate court indicated that the balancing test would consider "the type of speech involved, the speaker's expectation of privacy, the potential consequence of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party's position, and the availability of alternative discovery methods." The court rejected Mobilisa's argument that a more lenient standard should apply because the lawsuit was based on a property claim (unauthorized "hacking" of a computer system) rather than defamation.

      Applying this standard, the appellate court upheld the trial court's earlier determination that Mobilisa had produced sufficient evidence to pass the "summary judgment" test. It remanded the case, however, so that the trial court could apply the extra balancing test.

      Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006)

      Best Western International (BWI) is a non-profit corporation whose members own and operate hotels under the Best Western name. Some of these members used a forum site -- www.freewrites.com -- to communicate amongst themselves, often anonymously. When BWI proposed some changes in company policy, a flurry of commentary went up on the forum. BWI sued the forum's anonymous administrator and several anonymous posters over messages on the site, which BWI claimed were defamatory, revealed confidential information, infringed Best Western's trademark, and harmed the company in a variety of other ways. BWI filed a motion for expedited discovery, requesting permission to serve subpoenas on various Internet service providers to uncover the identities of the anonymous defendants.

      Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court adopted a "summary judgment" standard and denied BWI's motion to expedite discovery. It concluded that BWI had not produced sufficient evidence to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

      Jurisdiction: 

      Subject Area: 

      Legal Protections for Anonymous Speech in California

      Note: This page covers information specific to California. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      The court decisions on anonymity in California are mixed. Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), established a "motion to dismiss" standard that puts a relatively low burden on a plaintiff seeking to unmask an anonymous speaker, and other courts have followed it. Highfields Capital Management v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005), applied a test influenced by Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). Finally, in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), a California appellate court applied a standard that requires a plaintiff to make a "prima facie" showing on its underlying legal claim, where "prima facie" means bringing forward sufficient evidence for each of element within his or her control.

      Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999)

      The Columbia Insurance Company owned the trademark rights associated with See's Candy Shops. Several unknown persons registered the domain names seescandy.com and seescandys.com with Network Solutions. Columbia Insurance sued these anonymous persons for a variety of claims, including trademark infringement and unfair competition. The company requested a temporary restraining order against the defendants' activities. Because imposing the restraining order would be impossible without knowing the defendants' identities, the court considered whether to allow "pre-action" discovery to obtain this information from Network Solutions.

      The court announced four criteria for plaintiffs to satisfy before allowing such discovery: (1) the plaintiff should identify the anonymous party specifically enough that the court can determine that the defendant is a real person or entity that could be sued in federal court; (2) the plaintiff should identity all steps previously taken to find the defendant; (3) the plaintiff should establish that their suit could withstand a motion to dismiss; (4) the plaintiff should inform the court of the reasons for its discovery request and identify parties the parties upon which it requests the discovery be served.

      The court rendered the "motion to dismiss" standard somewhat vague by indicating that a plaintiff "must make some showing that an act giving rise to liability actually occurred." Ordinarily, a plaintiff can survive a motion to dismiss simply by making allegations in the complaint that, if true, would entitle them to a legal remedy. The "some showing" language suggests that some kind of evidence might be required. On the other hand, the court stated that the "some showing" requirement was satisfied precisely because "[p]laintiff has demonstrated that their trademark infringement claim could survive a motion to dismiss." This injects some uncertainty into the test.

      Later decisions by courts in California have not cleared up this uncertainty. In Rocker Management v. John Does 1 Through 20, the court was able to reject the plaintiff's claims under a "motion to dismiss" standard based on the plaintiff's insufficient pleadings alone. The court in Highfields Capital Management, meanwhile, cited Seescandy.com as requiring the plaintiff to make at least some evidentiary showing.

      Highfields Capital Management v. Doe, 385 F.Supp.2d 969 (N.D. Cal. 2005)

      Highfields Capital Management (HCM) was the largest shareholder of the company Silicon Graphics. In a Yahoo! Finance chat room devoted to Silicon Graphics, an anonymous poster using the pseudonym "highfieldscapital" made statements implying that HCM was profiting at the expense of the company's other investors. HCM sued the anonymous poster in Massachusetts for commercial disparagement and trademark infringement and subpoenaed Yahoo! in the Northern District of California for information regarding the identity of highfieldscapital and another poster. The anonymous defendant moved to quash the subpoena. A federal magistrate judge considered the motion and recommended quashing the subpoena.

      The magistrate used a test akin to that applied in Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). Under this test, first the plaintiff is required put forward substantial evidence that "if unrebutted, tend[s] to support a finding of each fact that is essential to a given cause of action." Second, if the plaintiff passes this hurdle, the court is required balance the competing potential harms to the plaintiff versus to the defendant. The plaintiff must succeed on both counts in order to obtain disclosure.

      In this case, the magistrate found that the plaintiff had not put forward enough evidence to pass the first hurdle, and so recommended quashing the subpoena. Further, although the plaintiff did not reach the second hurdle, it stated that the plaintiff would not satisfy it because of the strong First Amendment interests of the defendant and minimal threat to the plaintiff.

      The district court accepted the magistrate's reasoning over HCM's objection and granted the anonymous defendant's motion to quash.

      Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008)

      Lisa Krinsky, a former officer of SFBC International, Inc., sued ten anonymous defendants over comments about her posted to a Yahoo! message board. According to court papers, the anonymous forum posters made "scathing verbal attacks" against SFBC, Krinsky, and fellow corporate officers. Krinsky filed a lawsuit in Florida state court in January 2006, alleging defamation and intentional interference with contractual relations. She served a subpoena on Yahoo! in California, seeking the identities of the anonymous forum posters.

      After Yahoo! notified the posters, one of them -- Doe 6 -- filed a motion to quash the subpoena in California state court. The court denied the motion to quash, noting (quite strangely) that Doe 6's conduct "appeared to be similar to federal cases involving "'pump and dump' stock manipulation efforts," although no claim to that effect was in Krinsky's complaint.

      In February 2008, a California appellate court reversed the lower court's ruling. In doing so, it applied a test that requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that a prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her defamation and interference with contract claims, except for those elements that were beyond her control or dependent on the identity of the defendant.

      Applying this standard, the court held that Krinsky had not made a prima facie showing on her defamation claim because the message board comments, viewed in context, constituted opinion protected by the First Amendment rather than statements of fact about Krinsky. The court further held that Krinsky could not make a prima facie showing on her interference with contract claim because this claim was based on the same constitutionally protected opinion.

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      Legal Protections for Anonymous Speech in Connecticut

      Note: This page covers information specific to Connecticut. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      In Connecticut, the law on what test or standard to apply when a plaintiff seeks to uncover the identity of an anonymous Internet speaker is not entirely clear. One court, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super. Ct. 2003), applied an unusual standard that derives from Connecticut's case law on an obscure procedure known as a "bill of discovery." A federal case, Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), applied a test similar to that applied in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).

      La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super. Ct. 2003)

      La Societe Metro Cash & Carry France sought a "bill of discovery" in Connecticut state court compelling Time Warner Cable to disclose the identity of an individual who allegedly sent an anonymous email to several of its regional directors accusing the company of deceptive and unethical business practices.  The request was based on an ex parte order of a French court requiring Time Warner to give up this information.  Time Warner notified its subscriber of the Connecticut action, and she intervened through counsel to oppose the bill.

      The court granted the bill of discovery.  It applied an unusual standard with two requirements.  First, the plaintiff must show that what it seeks is necessary to mount a claim or defense in another action, and that it has no other way of obtaining the desired material.  Second, the plaintiff must "demonstrate by detailed facts that there is probable cause to bring a potential cause of action." It defined "probable cause" as "knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found."

      The court found that La Societe Metro had put forward enough evidence to establish probable cause that it had suffered damages as a result of the defamatory action of the anonymous emailer (potentially under French law), and that it was seeking information about her identity in good faith and not for any improper purpose.

      Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008)

      In Doe I v. Individuals, the plaintiff, a former Yale law school student, sought the identity of a pseudonymous comment going by "AK47", who allegedly made defamatory, threatening, and harassing comments about her on the AutoAdmit website. 

      The court applied a test similar to that applied in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001).  The court looked at the following factors: (1) whether the plaintiff has undertaken efforts to notify the anonymous posters and withheld action to afford the fictitiously named defendants a reasonable opportunity to file and serve opposition;  (2) whether the plaintiff has identified and set forth the exact statements purportedly made by each anonymous poster that the plaintiff alleges are actionable speech; (3) the specificity of the discovery request and whether there is an alternative means of obtaining the information called for in the subpoena; (4) whether there is a central need for the subpoenaed information to advance the plaintiff's claims; (5) the subpoenaed party's expectation of privacy at the time the online material was posted; and (6) whether the plaintiff has made a concrete showing as to each element of a prima face case against the defendant.

      The court concluded that the plaintiff satisfied all these requirements, including producing sufficient evidence supporting a prima face case for libel, and thus denied the defendant's motion to quash.

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      Legal Protections for Anonymous Speech in Delaware

      Note: This page covers information specific to Delaware. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Delaware courts apply a protective standard before permitting disclosure of an anonymous Internet speaker's identity. The leading case is Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Supreme Court of Delaware announced a "summary judgment" standard, which requires a plaintiff to bring forward sufficient evidence on those elements of its claim that are within its control. This is one of the most influential cases in this area of law.

      Doe v. Cahill, 884 A.2d 451 (Del. 2005)

      Several anonymous Internet users posted negative comments about local politician Patrick Cahill on a blog. Cahill and his wife sued four anonymous defendants for defamation. Through discovery, the plaintiffs determined that Comcast was the ISP for one of the anonymous posters and subpoenaed Comcast for information about the poster's identity. After being notified of the subpoena, the anonymous defendant filed a motion for a protective order to prevent disclosure.

      The trial court, in Cahill v. John Doe-Number One, 879 A.2d 943 (Del. Super. Ct. 2005), applied a "good faith" standard to the subpoena, citing the Virginia case In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000). The court found that the plaintiffs had satisfied this standard and ordered Comcast to comply with the subpoena. The anonymous defendant appealed.

      On appeal, the Supreme Court of Delaware rejected the trial court's "good faith" test as "too easily satisfied to protect sufficiently a defendant's right to speak anonymously." Instead, it announced a more rigorous standard. Under this standard, first the plaintiff must make reasonable efforts to notify the anonymous defendant of the subpoena. Second, the plaintiff must put forward enough evidence on each element of the claim that it would survive a motion for "summary judgment." Surviving a motion for "summary judgment" mean that the plaintiff can bring forward enough evidence to demonstrate the existence of a factual dispute on each of the key elements of its claim. The court loosened the standard in one important respect: a plaintiff need not put forward evidence on those elements of its claim that are beyond its control (meaning that they are difficult to prove without knowing who the defendant is), such as elements involving the defendant's state of mind.

      Applying this test, the court found that the defendant's statements were "incapable of a defamatory meaning," and therefore the plaintiffs' evidence was not sufficient to pass the summary judgment test. Moreover, because the defendant's statements were not defamatory, the court ordered the trial court to dismiss the plaintiffs' entire claim.

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      Legal Protections for Anonymous Speech in Florida

      The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Florida.  For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

      If you know about an Internet anonymity case in Florida, please contact us.

       

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      Legal Protections for Anonymous Speech in Georgia

      The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Georgia. For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

      If you know about an Internet anonymity case in Georgia, please contact us.

       

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      Legal Protections for Anonymous Speech in Illinois

      Illinois has relatively little case law on the First Amendment right to anonymous/pseudonymous speech, though a decision is expected soon in Holsten v. Uptown Update and What the Helen. 

      One decision, Alton Telegraph v. Illinois, 08-MR-548 (Ill. Cir. Ct. May 15, 2009), deals with whether a newspaper can invoke the Illinois shield law to protect the identity of anonymous commenters.

      Maxon v. Ottawa Publishing Co., 3-08-0805 (Ill. App. Ct. June 1, 2010)

      Plaintiffs had sought the identities of a pseudonymous commenter that had posted allegedly defamatory statements in comments on articles posted on the website of a local newspaper. The lower court applied a modified version of the Dendrite and Cahill test and dismissed plaintiffs' petition for discovery of the commenter's identity. The appeals court rejected the proposition that "anonymous speech, in and of itself, warrants constitutional protection," and accordingly found that there was "no need for the additional procedural requirements articulated in the Dendrite-Cahill test." Slip op. at 11-12. Instead, the court determined that the only test a lower court should apply to a petition seeking the identity of an anonymous commenter was that set forth in Supreme Court Rule 224, which requires the plaintiff to establish all elements of a claim for defamation. Id. at 13-14. The court specifically rejected any additional requirement to balance the commenter's First Amendment rights, and further rejected the application of a summary judgment standard, rather than a motion to dismiss standard, to test the sufficiency of the plaintiff's claims. Id

      AltonTelegraph v. Illinois, 08-MR-548 (Ill. Cir. Ct. May 15, 2009)

      In Alton Telegraph v. Illinois, an Illinois trial court denied in part the Alton Telegraph’s motion to quash a subpoena issued by state prosecutors seeking the identity of five pseudonymous posters who commented on a Telegraph story about an ongoing murder investigation. The court rejected the Alton Telegraph’s argument that the pseudonymous commenters were “sources” protected by the Illinois shield law.

      While acknowledging in the abstract that commenters could serve as sources, the court ruled that these commenters were not sources because the Telegraph reporter did not use any information supplied by them “in researching, investigating, or writing the article,” and “none of the comments were written until after the article was published.” Slip op. at 5. In the alternative, the court ruled that, even if the shield law did apply to the case, the state had “satisfied its burden to divest the Telegraph of its privilege” because it had exhausted all other sources of information and the sources were relevant. Id. at 6. Nevertheless, the court granted the motion to quash with respect to three of the commenters because their comments did not contain the same highly relevant information and “appear[ed] to be nothing more than conversation/discussion.” Id. at 7.  Neither the court nor the parties raised the issue of the commenters’ First Amendment rights to speak anonymously. 

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      Legal Protections for Anonymous Speech in Indiana

      The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Indiana.  For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

      If you know about an Internet anonymity case in Indiana, please contact us.

       

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      Legal Protections for Anonymous Speech in Louisiana

      Note: This page covers information specific to Louisiana. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      One Louisiana court has addressed the situation of a plaintiff seeking to compel an ISP to disclose the identity of an anonymous Internet speaker. The court applied an ill-defined test, requiring the plaintiff to show either a "reasonable probability" or "reasonable possibility" of success on its claim, depending on the type of speech involved.

      In re Baxter, 2001 WL 34806203 (W.D. La. 2001)

      Anonymous Internet users criticized Richard Baxter, an administrator at the University of Louisiana-Monroe, on a website called "Truth@ULM.com," which was hosted by Homestead Technologies. In preparation for a lawsuit against the anonymous posters for defamation, Baxter filed a "miscellaneous case" in federal court seeking to take discovery from Homestead Technologies about the anonymous posters' identities. In that action, Baxter moved for a court order compelling Homestead to provide this information, and one of the anonymous defendants moved to intervene in order to object.

      In deciding the two motions, the district court announced its own, unique test for determining when disclosure of an anonymous defendant's identity is justified. Unfortunately, the test is confusing, and the court's description of it is muddled. The test has different requirements based on whether the speech in question relates to a matter of public or private concern, and whether the plaintiff is a public figure. When the speech relates to a matter of public concern or the plaintiff is a public figure, the plaintiff must show a "reasonable possibility" of success on the merits of the claim. When the speech relates to a matter of private concern, the plaintiff must show a "reasonable probability" of success on the merits of the claim. Apparently, a "reasonable possibility" is less demanding than a "reasonable probability," but the court never makes clear the precise distinction.

      More importantly, the court never explains whether actual evidence or mere allegations are required to show either a "reasonable possibility" or "reasonable probability." In deciding to grant Baxter's motion to compel disclosure, the court relied on the offending Internet postings (i.e., actual evidence), but it seemed to assume that some statements were false and that they caused Baxter harm without requiring Baxter to bring forward evidence on these points. Overall, it is difficult to tell exactly what this test requires. Additionally, this test appears limited to defamation cases.

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      Legal Protections for Anonymous Speech in Maryland

      Note: This page covers information specific to Maryland. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Maryland courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity. The leading case is the Maryland Court of Appeals decision in Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009), discussed below.

      Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009)

      In Brodie, the Court of Appeals of Maryland reversed the trial court’s order denying Independent Newspapers’ motion to quash a subpoena seeking the identity of five pseudonymous commenters. The plaintiff, Zebulon Brodie, sought the identities of the commenters to pursue a defamation action against them over statements on a website forum criticizing Brodie for selling his historic home to another developer who allegedly burned it down and accusing Brodie of maintaining a dirty Dunkin' Donuts franchise. The Court of Appeals ruled that Brodie’s subpoena should have been quashed. In the process, it clarified the appropriate standard for the lower courts, indicating that “a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test,” such as the Dendrite standard, “most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks.” 966 A.2d at 456.

      The Court of Appeals spelled out a five-part test, under which a court should take the following steps before ordering disclosure of the identity of an anonymous or pseudonymous speaker: (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5) if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity. Id. at 457.  

      The Court of Appeals ruled that Brodie did not have a valid cause of action against the posters because statements made by certain posters were not actionable and the statute of limitations had run against other posters not named in Brodie’s complaint. See id. at 449.

      For additional analysis, see CMLP: Maryland High Court Joins Growing Consensus Protecting Anonymous Speech Online.

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      Legal Protections for Anonymous Speech in Massachusetts

      Note: This page covers information specific to Massachusetts. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      It is not yet clear what standard applies in Massachusetts when a plaintiff seeks to subpoena an ISP for information about an anonymous poster's identity. The one relevant Massachusetts case, McMann v. Doe, 460 F.Supp.2d 259 (D. Mass. 2006), indicated a willingness to adopt a Cahill-like "summary judgment" standard, but this reasoning was not necessary to its decision. The case thus has uncertain value as precedent.

      McMann v. Doe, 460 F.Supp.2d 259 (D. Mass. 2006)

      According to court documents in the litigation, an anonymous internet user created a website critical of Paul McMann, a Massachusetts real estate developer. The website allegedly contained a photograph of Mr. McMann, the statement that he "turned lives upside down," and a suggestion to "be afraid, be very afraid." The website announced that it would soon be updated with specific evidence of McMann's alleged misdealings. McMann filed suit in federal court in Massachusetts, claiming that the unknown website operator defamed him, violated his statutory and common law right of privacy, and infringed his common-law copyright. McMann sought to subpoena two ISPs to discover the identity of the website operator.

      The federal court held that it lacked subject-matter jurisdiction over the case because McMann asserted only state-law claims and did not identify the citizenship of the anonymous defendant. Although this was sufficient to dispose of the case, the court stated alternative grounds for denying McMann's request for a subpoena and dismissing the case. The court indicated a willingness to follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Delaware Supreme Court held that a plaintiff must bring forth evidence sufficient to survive a motion for "summary judgment" on those claims within its control before obtaining disclosure of an anonymous speaker's identity. (Surviving a motion for summary judgment means that a plaintiff must bring forth sufficient evidence to support its claim, such that the case would ordinarily go to trial, with certain limitations.)

      The McMann court expressed some reservations about this standard, but ultimately determined that "it is reasonable to apply some sort of screen to the plaintiff's claim before authorizing the subpoena." The court determined that the plaintiff's claims failed under a summary judgment standard, but also under the more lenient "motion to dismiss" standard. (A motion to dismiss standard just looks at whether the allegations in the complaint are sufficient, without requiring any evidence.) This reasoning creates uncertainty as to whether the court applied a summary judgment or motion to dismiss standard. The court's holding on subject-matter jurisdiction further casts doubt on the precedential value of this ruling.

       

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      Legal Protections for Anonymous Speech in Michigan

      Note: This page covers information specific to Michigan. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      In Michigan, there is little case law on the First Amendment right to anonymous/pseudonymous speech, so the issue of what test or standard to apply when a plaintiff seeks to uncover the identity of an anonymous Internet speaker is not entirely clear. The Michigan Court of Appeals, in Thomas M. Cooley Law School v. Doe et al., No. 307426 (Mich. Ct. App. Apr. 4, 2013), declined to adopt any special test providing additional First Amendment protection for anonymous speakers. Instead, it held that Michigan’s discovery rules adequately protect First Amendment interests. The Michigan Supreme Court has yet to rule on this issue.

      Thomas M. Cooley Law School v. Doe et al., No. 307426 (Mich. Ct. App. Apr. 4, 2013)

      In Cooley, a former Cooley Law School student (“Doe 1”, posting pseudonymously as Rockstar05) posted allegedly defamatory statements about the law school on his website, “Thomas M. Cooley Law School Scam.” After filing a complaint against Doe 1 in a Michigan state trial court (Ingham County), the law school petitioned the San Francisco County Superior Court for a subpoena to obtain Doe 1’s identity from California-based Weebly, host of Doe 1’s website. The subpoena was issued, and Doe 1 filed a motion to quash the subpoena in . Doe 1’s motion was denied by the Michigan trial court, which adopted the a form of the First Amendment balancing test in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). Doe 1 appealed this order.

      On appeal, the Court rejected the trial court’s application of a traditional First Amendment balancing test with respect to anonymous speech online, declining to adopt a test from either Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001) or Doe v. Cahill, 884 A.2d 451 (Del. 2005). The Court of Appeals held that Michigan’s procedural rules already protected the anonymous speaker’s first amendment interests: “We conclude that Michigan procedures for a protective order [under Michigan Court Rule 2.302], when combined with Michigan procedures for summary disposition [under Michigan Court Rule 2.116(C)(8)], adequately protect a defendant's First Amendment interests in anonymity.” Under this standard, the Court held that the trial court need have only considered whether good cause existed to prevent enforcement of the subpoena and to what extent to grant relief. The Court of Appeals therefore reversed the trial court’s application of out-of-state law, and sent the case back to the trial court for a determination as to whether Doe 1 was entitled to have the subpoena quashed under Michigan’s own rules of procedure.

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      Legal Protections for Anonymous Speech in Missouri

      Note: This page covers information specific to Missouri. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Missouri law is unclear about exactly what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity to name that speaker as a defendant in a John Doe lawsuit. One case, Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009), addressed a situation where a party sought the identity of an online speaker to serve as a witness, rather than as a defendant.

      Sedersten v. Taylor, 2009 WL 4802567 (W.D. Mo. Dec. 9, 2009)

      In Sedersten, a federal district court in the Western District of Missouri denied John Sedersten’s motion to compel The Springfield News-Leader to divulge the identity of "bornandraisedhere," a pseudonymous commenter who commented on an article on the News-Leader's website. The subpoena issued in conjunction with Sedersten's civil lawsuit against the City of Springfield, Missouri, Springfield's police chief, and a former Springfield police officer. The News-Leader article discussed county prosecutors' decision to drop charges against the police officer, a decision that "bornandraisedhere" sharply criticized.  Gannett Missouri Publishing, the publisher of the News-Leader, objected to the subpoena, and Sedersten moved to compel the newspaper to turn over information.  

      The district court briefly reviewed the various standards applied by other courts in anonymous speech cases and determined that “a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” 2009 Wl 4802567, at *2 (citing  Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001)). The court adopted the four-part test applied in 2TheMart.com, which requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. Id. The court also explained that it would “keep in mind other First Amendment principles, such as the strict scrutiny applied to restrictions on political speech.” Id.

      Applying this test, the court determined that “this is not the exceptional case that warrants disclosure of an anonymous speaker’s identity.” Id. The court found that the evidence Sedersten sought to elicit from bornandraisedhere was cumulative, and that Sedersten could rely on the comments in making out his negligent hiring/retention case against the City without knowing the identity of the speaker. In addition, the court commented that, if bornandraisedhere was in fact the chief of police (a named defendant), then Sedersten could simply question the chief on the comments during a deposition. Id. at *2 n.5.

      The court also rejected Sedersten’s argument that bornandraisedhere had waived First Amendment protection by agreeing to the News-Leader’s privacy policy, which reserved to the newspaper "the right to use, and to disclose to third parties, all of the information collected from and about [users] while [using] the Site in any way and for any purpose." Id. at *1, 3. The court was unconvinced by Sedersten’s reliance on “two sentences in a two-page document in which the overarching theme is that information provided by a user of the site may be used for various commercial purposes.” The court further explained that “[n]othing on the face of the privacy policy even hints a user may be waiving his or her constitutional right to anonymous free speech by posting comments or materials on the News-Leader’s website.”  Id. at *3.

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      Legal Protections for Anonymous Speech in Montana

      Note: This page covers information specific to Montana. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Montana has little case law on the First Amendment right to anonymous/pseudonymous speech, but one decision, Doty v. Molnar, No. DV 07-022 (Mont. Cir. Ct. Sept. 3, 2008), deals with whether a newspaper can invoke the Montana shield law to protect the identity of anonymous commenters.

      Doty v. Molnar, No. DV 07-022 (Mont. Cir. Ct. Sept. 3, 2008)

      Russell Doty, a former candidate for local political office in Montana, subpoenaed The Billings Gazette, seeking identifying information for three anonymous individuals who posted comments to an article on the newspaper's website in 2008 using the pseudonyms "CutiePie," "Always, wondering," and "High Plains Drifter."  Doty issued the subpoena in connection with a defamation lawsuit against his former political rival, Brad Molnar, in which he alleged that Molnar made false statements in 2004 concerning Doty's qualifications to run for office. 

      Doty alleged that Molnar was one of the pseudonymous posters (Molnar denied this in a deposition), and that the other posters might serve as witnesses about the harm to his reputation caused by Molnar's 2004 statements.  The Billings Gazette filed a motion to quash the subpoena, arguing that Montanta's shield law protected it from having to disclose the commenters' IP and email addresses. 

      On September 3, 2008, Judge Todd Baugh of Montana's 13th Judicial District granted the motion to quash, ruling that Montana's shield law protected the commenters' identifying information.  Montana's shield law says that a news organization or any person "connected with or employed by [a news organization] for the purpose of gathering, writing, editing, or disseminating news” may not be required to "disclose any information obtained or prepared or the source of that information . . . if the information was gathered, received, or processed in the course of [a reporter's] employment or [a news organization's] business."  Mont. Code § 26-1-902(1).  Judge Baugh agreed with the Gazette's argument that this language is broad enough to encompass data gathered when a newspaper website user posts a comment. 

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      Legal Protections for Anonymous Speech in New Hampshire

       Note: This page covers information specific to New Hampshire. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      We are eagerly awaiting the New Hampshire Supreme Court's decision on appeal from The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar. 11, 2009), a case in which a New Hampshire trial court ordered the publishers of the mortgage industry watchdog site, The Mortgage Lender Implode-O-Meter ("ML-Implode"), to turn over the identity of an anonymous source who provided ML-Implode with a copy of a financial document prepared by The Mortgage Specialists, Inc. for submission to the New Hampshire Banking Department. The court also ordered ML-Implode to reveal the identity of a pseudonymous commenter who allegedly posted defamatory statements about the company, and enjoined ML-Implode from re-posting the financial document or the allegedly defamatory comments. 

      Although ML-Implode argued that both New Hampshire’s common law reporter’s privilege and the First Amendment right to speak anonymously protected the identities of the source and commenter, the Superior Court Judge ordered disclosure without dealing with either of these arguments directly. Instead, the court reasoned that the case was not a “press issue” because Mortgage Specialists was “willing to hold [ML-Implode] harmless with respect to the publication of [the objectionable] information,” and “[a]ll it wants from the respondent is the identity of the individual or entity which provided unauthorized information to [ML-Implode] and also the identity of the entity or individual that made allegedly defamatory statements about the petitioner to the respondent.” Slip op. at 4. With respect to the pseudonymous comments, the court made no findings of fact or conclusions of law regarding the elements of the underlying defamation claim.  

      For details on the lower court's decision, see CMLP, New Hampshire Court Tramples on Constitution, Reporter's Privilege, Section 230,What Have You

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      Legal Protections for Anonymous Speech in New Jersey

      Note: This page covers information specific to New Jersey. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      New Jersey courts apply a protective test before permitting disclosure of an anonymous Internet speaker's identity. Among other things, the courts require a plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, and assuming the plaintiff can meet this burden, the courts apply a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

      Three New Jersey cases applying this standard are discussed below:

      Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)

      Dendrite International, a company that developed and serviced software for the pharmaceutical industry, brought a "John Doe" lawsuit in New Jersey state court against fourteen unnamed defendants, complaining about critical messages that they posted on Yahoo! message boards under pseudonyms. Dendrite claimed the messages were defamatory and revealed company trade secrets and sought permission from the court to take discovery from Yahoo regarding the identity of certain of the anonymous posters. The trial court allowed Dendrite to conduct limited discovery to find out the identities of John Does 1 and 2, who were current or former employees of the company, but rejected its request for an order compelling Yahoo to identify John Doe 3.

      Dendrite appealed, and the New Jersey appellate court affirmed the lower court's ruling. In its opinion, the court set out guidelines for lower courts to follow when faced with a request for an order compelling an ISP to reveal the identity of an anonymous Internet poster. The court developed a five-part test: (1) the plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond; (2) the plaintiff must identify the exact statements made by the poster; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must bring forth sufficient evidence for each element of its claim; and (5) the court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

      Applying the standard to the facts of the case, the appellate court held that Dendrite had failed to produce sufficient evidence for each element of its defamation claim. Specifically, the court held that Dendrite had not produced sufficient evidence of harm resulting from John Doe 3's statements.

      Immunomedics v. Doe, 775 A.2d 773 (N.J. App. Div. 2001)

      An unknown internet user posted information on a Yahoo! message board about the company Immunomedics under the pseudonym moonshine_fr. Immunomedics claimed that moonshine_fr's postings suggested that she was a company employee, and therefore her postings breached the confidentiality agreement she had signed with the company. Immunomedics sued her in a "Jane Doe" suit and subpoenaed Yahoo! for information regarding moonshine_fr's identity. When informed of the subpoena, moonshine_fr filed a motion to quash it. The trial court denied the motion, and she appealed.

      The appellate court applied the test created in Dendrite. The court determined that Immunomedics had produced sufficient evidence to support its claim that moonshine_fr was an employee and was thus subject to the company's confidentiality agreement. Without extensive analysis, the court also concluded that Immunomedics's need to identify moonshine_fr in order to enforce its confidentiality agreement outweighed her right to speak anonymously. Therefore, it affirmed the trial court's ruling allowing Immunomedics to subpoena Yahoo! for her identifying information.

      A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div. Mar. 8, 2010)

      In A.Z. v. Doe, a mid-level appeals court in New Jersey affirmed an order quashing a subpoena seeking subscriber information for a Gmail account. The plaintiff was a member of her high school’s “Cool Kids & Heroes” program, comprised of students of high academic achievement who pledged to maintain standards of “exemplary personal conduct.” An anonymous individual set up a Gmail account and sent an email to the faculty advisor for the Cool Kids & Heroes program stating that seven students, including the plaintiff, were “breaking their contracts, and breaking the law.” The email attached several photographs taken off Facebook showing students drinking and smoking pot. Only one of the photographs included the plaintiff, and it showed her standing at a ping pong table about to throw a ping pong ball, but it did not show her drinking or smoking.
       
      The plaintiff filed a John Doe lawsuit against the sender of the email and subpoenaed Google, and the Doe defendant filed a motion to quash. The trial court granted the motion, reasoning that the plaintiff failed to show that the strength of her prima facie case and the necessity for disclosure outweighed Doe’s First Amendment right to anonymous speech.

      On appeal, the court adhered to the Dendrite standard and affirmed the trial court, though on different grounds. The appeals court ruled that the plaintiff was not entitled to unmask the defendant because she could not make out a prima facie case of defamation. Specifically, the court found that the plaintiff presented no evidence that the statement she was “breaking [her] contract[], and breaking the law” was false. The court noted that the plaintiff “never provided a sworn statement that she was not consuming alcohol while underage, that the photograph was a forgery, that the photograph had been altered, or that she was not the person who was depicted in the photograph.”  2010 WL 816647, at *5. The court also found compelling additional photographs taken off Facebook that Doe submitted in support of the motion to quash.  These photographs showed plaintiff holding and drinking alcoholic beverages along with the other students.  Id. at *6.  The court concluded: “We are satisfied that regardless of whether the balancing test embodied in Dendrite’s fourth prong is applied or not, no plaintiff is entitled to an order unmasking an anonymous author when the statements in question cannot support a cause of action for defamation.” Id. at *7.

      Note: Another New Jersey court rejected an attempt to obtain information about the identity of anonymous Internet speakers in Donato v. Moldow. The court applied the Dendrite standard.

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      Legal Protections for Anonymous Speech in New York

      Note: This page covers information specific to New York. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      New York law is unclear about exactly what test a court should apply in deciding whether to permit disclosure of an anonymous Internet speaker's identity. New York courts have applied a variety of different tests, though they all essentially require the plaintiff to make a substantial legal and factual showing before obtaining the identity of an anonymous Internet speaker. A number of the key cases are discussed below.

      Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007)

      The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a local school board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment. In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. (Google owns Blogger, which is the blog hosting service for the Orthomom blog.) After being notified of Greenbaum's discovery request, Orthomom intervened and objected to disclosure of her identity, invoking First Amendment protection for anonymous speech.

      In October 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce evidence on each element of its claim and that the court must independently balance the need for disclosure against the First Amendment values at stake. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim [were] plainly inactionable as a matter of law."

      Thus, Greenbaum provides some support for applying the Dendrite test in New York, but it is not conclusive.

      Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009)

      In Cohen, a New York state trial court granted model Liskula Cohen pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous.

      The court analyzed the discovery request under New York CPLR § 3102(c), which provides for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing of a meritorious cause of action before obtaining the identity of an anonymous defendant. See 887 N.Y.S.2d at 426-27 & n.5.  While acknowledging the First Amendment issues at stake and citing Dendrite, the court opined that New York law’s requirement of a prima facie showing “appear[s] to address the constitutional concerns raised in this context.” Id. at 427 n.5.

      The court held that Cohen adequately made this prima facie showing of defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion. Id. at 428-29. Somewhat confusingly, in rejecting the blogger’s argument that her statements should be viewed as opinion because “as a matter of law . . . Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting,” the court cited an old case from Virginia,  In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Va. Cir. Ct.), rev’d on other grounds, 542 S.E.2d 377 (Va. 2001), which applied a lenient “good faith” standard to a discovery request seeking the identity of an anonymous commenter. This reference is best understood as dicta, however, because the court invoked the case in dealing with a peripheral point. Furthermore, the AOL test is inconsistent with CPLR § 3102’s requirement of a “prima facie showing of a meritorious cause of action,” which the court invoked to sidestep First Amendment analysis. Id. at 427 n.5.

      Ottinger v. The Journal News, No. 08-03892 (N.Y. Sup. Ct. July 1, 2008)

      In Ottinger v. The Journal News, former House Representative Richard Ottinger and his wife, June Ottinger, sought the identity of three pseudonymous posters to LoHud.com, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley.  A New York state trial court denied the newspaper's motion to quash and ruled that it had to turn over the subpoeanaed information. 

      Ottinger and his wife subpoenaed The Journal News asking for identifying information for posters to the site's Mamaroneck community forum going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." The posters allegedly made statements accusing the Ottingers of unsavory conduct in the course of a neighborhood dispute over their construction of a house in the Village of Mamaroneck, NY. 

      The court applied the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and found that the Ottingers had satisfied the standard. 

      A second judge later dismissed the Ottingers' subsequent defamation lawsuit against Stuart Tiekert, the commenter unmasked in the previous proceeding. In its ruling, the court invoked New York's anti-SLAPP law and ruled that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law." 

      Zherka v. Bogdanos, 08 Civ. 2062 (S.D.N.Y. Feb. 24, 2009)

      In Zherka, a federal district court in the Southern District of New York granted The Journal News’ motion to quash subpoenas seeking the identities of three pseudonymous posters to a forum on the LoHud.com website. In ruling on the motion to quash, the court applied a multi-part test derived from Dendrite, Sony Music Entertainment v. Does, 326 F.Supp.2d 556 (S.D.N.Y. 2004), and Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008), which has the following elements: (1) the plaintiff must make a reasonable attempt to provide notice to the anonymous poster; (2) the plaintiff has to provide the court with the full statements which are at issue; (3) the plaintiff must make a concrete showing of a prima facie case; (4) the court should consider whether the information is available through alternate means; and (5) if all the other elements are satisfied, the court must balance the First Amendment interests of the anonymous posters against the need for disclosure in order to allow the plaintiff to proceed. Zherka, Tr. at 28-31.

      Interestingly, the court indicated that the First Amendment interests of the posters under prong five would be diminished if the website privacy policy warned that identifying information would be disclosed in response to court order or other legal process.  Id. at 28.  The court did not provide detailed reasoning on this point.

      In applying this standard, the court gave considerable weight to prong four, finding that the plaintiff had failed to pursue alternative means of identifying the posters and suggesting that the named defendants likely knew the posters’ identities. Id. at 30-31. The court gave the plaintiff permission to re-serve the subpoena after discovery between the named parties and stated that “it should be done with appropriate notice as outlined above, and with concurrent filing to me showing the full statements, laying out the prima facie case, and describing why there are no effective alternative means to get the information.” Id. at 32. 

      Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004)

      A number of anonymous internet users used a peer-to-peer network to exchange copyrighted music. Sony and other recording companies who owned the copyrights sued the anonymous internet users for copyright infringement and subpoenaed their ISP, Cablevision, for information that would reveal the defendants' identities. Cablevision notified the anonymous defendants, and several of them filed motions to quash.

      In deciding on the motion to quash, the court held that peer-to-peer file sharing "qualifies as speech, but only to a degree." Therefore, the court determined that anonymous file-sharing activity should receive some First Amendment protection, but only to a limited degree. The court identified five factors for determining whether to allow disclosure of an anonymous Internet user's identity: (1) whether there is "a concrete showing of a prima facie claim of actionable harm"; (2) the specificity of the discovery request; (3) the absence of alternative means to gain the information; (4) whether the information subpoenaed is central to the plaintiff's claim; and (5) the anonymous party's expectation of privacy. The court found all five factors here to weigh towards the plaintiffs, and thus denied the defendants' motions to quash.

      It is not entirely clear whether "a concrete showing of a prima facie claim of actionable harm" requires a plaintiff to put forth evidence, or whether a plaintiff can satisfy it with allegations alone. At times the court seems to suggest that allegations are enough, such as in the paragraph at page 9 of the linked opinion that begins, "Plaintiffs have alleged ownership of the copyrights ...." However, in the next paragraph, the court mentions the plaintiff's evidence, implying an evidentiary component to the "prima facie" inquiry. The "concrete showing" language itself also suggests an evidentiary requirement.

      Later courts have interpreted Sony Music in different ways. The Greenbaum court described Sony Music as a "lesser standard" (as compared to Dendrite), and the general trend is for courts to consider Sony Music's standard to be plaintiff-friendly, with the "prima facie" requirement satisfied with little or no evidence. On the other hand, one court has characterized Sony Music as applying a test comparable to the summary judgment standard from Doe v. Cahill, 884 A.2d 451 (Del. 2005). See Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006).

      Note that, although Sony Music is a copyright infringement case, courts have applied its standard in other types of cases. For example, a federal court in New York applied the Sony Music test in General Board of Global Ministries of the United Methodist Church v. Cablevision, 2004 WL 2904405 (E.D.N.Y. 2006), which involved anonymous "hacking" of a computer system. A New York state court applied it to a defamation case in Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005), which is discussed below.

      Public Relations Society of America v. Road Runner High Speed Online, 799 N.Y.S. 2d 847 (N.Y. Sup. Ct. 2005)

      A staff member of the Public Relations Society of America (PRSA) sent an anonymous email to PRSA's board of directors that was highly critical of the board and its executive director, Catherine Bolton. Bolton and PRSA brought a special proceeding in New York state court seeking "pre-action" discovery from Road Runner, the anonymous emailer's ISP. The anonymous defendant moved to intervene in the action in and to dismiss the petition for discovery.

      In deciding whether to allow PRSA and Bolton to compel disclosure of the emailer's identity from Road Runner, the court adopted the Sony Music standard (discussed above). The court found all factors weighed in favor of granting disclosure, noting in particular that the defendant had no legitimate expectation of privacy in this situation. The court applied Sony Music's "prima facie" standard as being roughly equivalent to a "motion to dismiss" standard, which looks at whether the allegations in the complaint are sufficient, without requiring any evidence.

      This case is significant because it applied a standard developed in the copyright infringement context to a defamation case.

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      Legal Protections for Anonymous Speech in North Carolina

      Note: This page covers information specific to North Carolina. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Only one North Carolina case, Alvis Coatings v. John Does One through Ten, 2004 WL 2904405 (W.D.N.C. 2004), has considered what standard to apply before permitting disclosure of an anonymous Internet speaker's identity. The court applied a "prima facie" standard, but it is not entirely clear what that standard requires in North Carolina.

      Alvis Coatings v. John Does One through Ten, 2004 WL 2904405 (W.D.N.C. 2004)

      According to court documents, ten anonymous internet users made postings on two online message boards that suggested that the company Alvis Coatings was deceiving its customers. Alvis Coatings sued the anonymous defendants for defamation, violations of federal trademark law, unfair competition, and other claims. Alvis Coatings successfully subpoenaed the websites that ran the message boards for the posters' IP addresses, and then subpoenaed two ISPs, Comcast and Roadrunner, for information revealing the identities of some of the posters. Comcast notified one of the posters, who filed a motion to quash the subpoena.

      The district court's opinion is not a model of clarity. The court identified the applicable legal standard as follows: "where a plaintiff makes a prima facie showing that an anonymous individual's conduct on the Internet is otherwise unlawful, the plaintiff is entitled to compel production of his identity in order to name him as a defendant and to obtain service of process." The court did not, however, explain exactly what "prima facie" means. Some statements in the opinion suggest that mere allegations might be sufficient -- for instance, the court characterized the relevant legal question as "whether an anonymous Internet speaker is entitled to maintain his anonymity in the face of allegations that his statements falsely impugned a federally-registered trademark or otherwise disparaged the complaining party's business."

      On the other hand, in applying its standard, the court relied on statements made by the plaintiff's Chief Operating Officer, apparently in an affidavit (or maybe in a hearing). Unfortunately, the court used the word "avers" repeatedly when describing the Chief Operating Officer's testimony, which obscures the fact that these statements were evidence, not allegations in the complaint. The court concluded that the Chief Operating Officer had "credibly averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally," and that this was sufficient to compel disclosure of the defendant's identity. The court did not do any analysis explaining how this testimony satisfied the particular elements of any of the plaintiff's claims.

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      Legal Protections for Anonymous Speech in Ohio

      The CMLP has not identified any relevant cases addressing the level of protection for anonymous speech in Ohio. For information about the legal protections courts have applied in other jurisdictions, please see the Legal Protections for Anonymous Speech section of this guide.

      If you know about an Internet anonymity case in Ohio, please contact us.

       

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      Legal Protections for Anonymous Speech in Oregon

      Note: This page covers information specific to Oregon. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Oregon has little case law on the First Amendment right to anonymous/pseudonymous speech, but one decision, Doe v. TS, No. CV08030693 (Or. Cir. Ct. Sept. 30, 2008), deals with whether a newspaper can invoke the Oregon shield law to protect the identity of anonymous commenters.

      Doe v. TS, No. CV08030693 (Or. Cir. Ct. Sept. 30, 2008)

      In Doe v. TS, an Oregon state judge ruled that Oregon's media shield law, found at Or. Rev. Stat. §§ 44.510 to 44.540, protected the identity of anonymous commenters who posted allegedly defamatory statements on The Portland Mercury and Willamette Week websites.

      According to the Portland Mercury, staff writer Amy Ruiz wrote a post in January 2008 about Portland mayoral candidate Sho Dozono.  In the comments section, a site user going by "Ronald" posted negative comments about Dozono's ties to a local businessman, Terry Beard.  The same commenter allegedly posted similar statements on the Willamette Week site. Proceeding anonymously, Beard filed a lawsuit against "Ronald" and other anonymous commenters and served a subpoena on The Portland Mercury and Williamette Week, seeking documents and records identifying them. When the two newspapers failed to produce responsive documents, Beard moved to compel them to produce documents identifying the anonymous commenters. The two newspapers teamed up to oppose the discovery request and won. 

      Judge James E. Redman of Clackamas County Court did not treat the anonymous commenters as confidential sources. Section 44.520(a) of the Oregon Revised Statutes protects from disclosure "[t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public." Instead, the court relied on section 44.520(b), which protects "[a]ny unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."  Section 44.510(1) defines "information" as including "any written, oral, pictorial or electronically recorded news or other data." The court characterized "Ronald's" IP address as data.

      On the question of whether the newspapers obtained this data in the course of newsgathering, Judge Redman drew a line based on the relevance of the blog comment to the post it's attached to:

      If the comment had been totally unrelated to the blog post, then the argument could be made that the Portland Mercury did not receive it in the "course of gathering, receiving, or processing information for any medium of communication to the public." (source)

      Concluding that the IP address fit within the shield law's "broad statutory language," the court denied Beard's motion to compel. Presumably, Beard will not be able to pursue the underlying lawsuit without the identity of the anonymous commenters.

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      Legal Protections for Anonymous Speech in Pennsylvania

      Note: This page covers information specific to Pennsylvania. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Pennsylvania law is not entirely clear on what standard the courts will apply before permitting disclosure of an anonymous Internet speaker's identity. The most recent case on the subject, Reunion Industries v. Doe 1, 2007 WL 1453491 (Pa. Com. Pl. 2007), applied a "summary judgment" standard based on Doe v. Cahill, 884 A.2d 451 (Del. 2005). However, courts in other cases have imposed less protective standards.

      Pennsylvania courts also have dealt with situations where a party seeks the identity of an online speaker to serve as a witness, rather than as a defendant in a John Doe lawsuit.  Two cases, McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), are discussed below.

      Reunion Industries v. Doe 1, 2007 WL 1453491 (Court of Common Pleas, Allegheny County March 5, 2007)

      Several anonymous Internet users posted negative comments about the company Reunion Industries on a Yahoo! Finance message board. Reunion Industries sued the anonymous posters for commercial disparagement and found out from Yahoo! that AOL was the ISP for one of the defendants ("Doe 1"). Reunion Industries moved for a court order compelling AOL to reveal Doe 1's identity, and Doe 1 moved for a protective order that would prevent AOL from revealing the information.

      The court applied a summary judgment standard, similar to that in Doe v. Cahill, 884 A.2d 451 (Del. 2005). Applying a summary judgment standard means that the plaintiff must bring forward sufficient evidence for each element of his claim. As in Cahill, however, the plaintiff in this case was not required to meet that standard on elements of the claim that were entirely within the defendant's control, specifically those involving the defendant's state of mind.

      In this case, the court found that plaintiff had not put forward enough evidence to compel disclosure from AOL.

      Putting this case in the context of Pennsylvania law generally, there are two additional points worth noting:

      • The court explicitly adopted a Cahill-style summary judgment test, but then stated that the plaintiff may be able to compel discovery eventually if it makes a "prima facie" showing of its claim. This suggests that, for this particular court, a summary judgment standard and a prima facie standard mean the same thing, and both represent a high-burden standard requiring the plaintiff to put forward substantial evidence. This is different from the approach used by the Court of Common Pleas for Lackawanna County in Polito v. AOL, 2004 WL 3768897 (Pa. Com. Pl. 2004) discussed below, which appears to use "prima facie" to indicate a standard that the plaintiff could satisfy through allegations alone.
      • The court cited one of its earlier decisions, Melvin v. Doe, 2000 WL 33311704 (Pa. Com. Pl. 2000) as adopting a summary judgment standard. However, the Reunion Industries decision is more explicit about applying a summary judgment standard than is Melvin, which does not use the actual words "summary judgment." Further, the Court of Common Pleas' decision in Melvin was overruled in a complex series of cases that did not definitively answer what standard should apply to online anonymity cases. Therefore, Reunion Industries is stronger support than Melvin for an argument that Pennsylvania courts should apply the protective summary judgment standard.
      Polito v. AOL Time Warner, 2004 WL 3768897 (Court of Common Pleas, Lackawanna County Jan. 28, 2004)

      One or more anonymous Internet users sent Michele Polito a series of upsetting emails and instant messages from various AOL accounts. Ultimately seeking to sue the anonymous Internet users, Ms. Polito first filed suit against AOL to compel disclosure of the identities of the subscribers who were harassing her.

      The court announced a four-part test for deciding whether AOL was required to disclose its subscribers' identities. Under this standard, the plaintiff must establish that (1) she has a "prima facie" claim under Pennsylvania law against the anonymous parties; (2) the information requested is directly relevant and necessary to her claim; (3) she is seeking the information in good faith; and (4) she cannot discover the anonymous parties' identities otherwise. The court found her to have satisfied all the criteria, and thus ordered AOL to disclose the subscribers' identities.

      In this opinion, the court used the term "prima facie" to mean that the plaintiff "satisfactorily states a cognizable claim under Pennsylvania law entitling her to some form of civil or criminal redress for actionable speech of the unknown declarant(s)." This strongly suggests that the prima facie standard here is one that the plaintiff can satisfy through allegations alone. It is worth noting, however, that the court did examine some evidence that the plaintiff had put forward.

      Further, the court found that Polito had satisfied the prima facie test even though she did "not assert a particular cause of action against the anonymous subscribers." In the court's view, it was enough that the emails and messages she received "arguably constitute harassment or stalking by communication under Pennsylvania law," and also that she had a "conceivable claim" of intentional infliction of emotional distress (despite the fact that "the Supreme Court of Pennsylvania has never expressly recognized a cause of action" for this claim).

      As noted, the Polito court's interpretation of the term "prima facie" is different from the Reunion Industries court's interpretation. This suggests that Pennsylvania law in this area is not settled, and a court's invocation of a prima facie standard does not clearly indicate whether it is applying a high-burden or low-burden test.

      Klehr Harrison Harvey Branzburg & Ellers v. JPA Development, 2006 WL 37020 (Court of Common Pleas, Philadelphia County Jan. 4, 2006)

      In this case, the court used Pennsylvania's own discovery rules to decide on a subpoena directed at an ISP and superficially rejected the Cahill and Dendrite standards. However, because of the case's highly unusual factual background and procedural posture, it is hard to draw any conclusion about the standard it uses. A brief summary is below.

      The company JPA Development was involved in litigation, and the law firm Klehr Harrison Harvey Branzburg & Ellers represented their opponent. JPA's owner, Jerry Pantelidis, and its employees created and posted content on two websites that accused Klehr Harrison and its attorneys of fraud. Klehr Harrison sued JPA, Pantelidis, and their ISPs for defamation and other claims. In this suit, Klehr Harrison served discovery requests on JPA, Pantelidis and the ISPs to discover the identities of posters on the website, which the court noted was most likely Pantelidis or people acting at his direction. JPA and Pantelidis responded with a motion for protective order to prevent this discovery. The court denied that motion and offered this opinion to the superior court handling the appeal, urging it to affirm its ruling.

      In deciding on the discovery requests, the court declined to use the tests from either Cahill or Dendrite v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), and instead relied on a Pennsylvania civil procedure law forbidding discovery that (1) is sought in bad faith, (2) would cause unreasonable annoyance, embarrassment, oppression, burden, or expense to any party, or (3) is beyond the scope of discovery. The court found that the plaintiffs had satisfied this standard. While such "good faith" standards generally do not require the court to look at the plaintiff's evidence, in this case the court had already taken evidence and used it to reach its decision.

      McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)

      In McVicker, a federal district court in the Western District of Pennsylvania denied William McVicker’s motion to compel Trib Total Media, the publisher of the South Hills Record and YourSouthHills.com, to disclose identifying information for seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the posters’ identities in order to impeach the testimony of city council members who made the decision to fire him. 

      In ruling on the motion to compel, the district court reviewed the various standards applied by other courts in anonymous speech cases and determined that “a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” McVicker, 2010 WL 786275, at *3 (citing  Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001)). The court adopted the four-part test applied in 2TheMart.com and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008), which requires the court to consider whether (1) the subpoena was issued in good faith; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to that claim or defense; and (4) information sufficient to establish or to disprove the claim or defense is unavailable from any other source. McVicker, 2010 WL 786275, at *5.

      The court determined that McVicker failed to show that the identifying information was directly and materially relevant to his employment claim because it was primarily useful for impeachment purposes. Id. The court also found that the identities of the commenters and information in their possession were not strictly necessary for McVicker to impeach the city council members effectively, and that the same or similar information might be obtained through "normal, anticipated forms of discovery." Id. at *6. 

      In the course of its analysis, the court also “summarily rejected” McVicker’s argument that the YourSouthHills.com's privacy policy created no expectation of privacy, finding that the policy “clearly reflects that [the website publisher] will disclose its users’ personally identifiable information only in very limited situations.” Id. at *5. 

      The district court also ruled that Trib Total Media had standing to assert the First Amendment rights of individuals posting to its website. See id. at *4 

      Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008)

      Brenda Enterline subpoenaed The Pocono Record, a daily newspaper and news website serving northeast Pennsylvania, seeking the identity of individuals who made anonymous forum posts on its website.  

      In September 2008, Enterline sued the Pocono Medical Center for sexual harassment.  The Pocono Record published an article about her lawsuit in its print and online editions.  A number of commenters posted to the website forum associated with the article, and some of the comments suggested that the authors had personal knowledge of the facts at issue in Enterline's lawsuit.  She then subpoenaed The Pocono Record, seeking information identifying eight of the anonymous speakers. The newspaper objected to the subpoena, arguing that it was premature (discovery had not yet commenced in the lawsuit), that it violated the First Amendment rights of the commenters, and that the reporter's privilege protected the identity of the commenters as sources.  Enterline line moved to compel The Record to comply and for sanctions.

      The district court denied Enterline's motion. It held that The Record had standing to assert the First Amendment rights of the third-party anonymous commenters and that disclosure was not warranted under the circumstances.  The court refrained from determining "the full extent of the First Amendment right to anonymity," instead deciding the case based on the four-part standard applied in Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), which Enterline had argued for in her brief.  Under this standard, the court determined that disclosure was not appropriate because Enterline had not demonstrated that the information was unavailable from other sources.  The court did not address the newspaper's other grounds for refusing to comply with the subpoena.

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      Legal Protections for Anonymous Speech in Tennessee

      Note: This page covers information specific to Tennessee. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Tennessee has one case, Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009), which applied a protective test derived from Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001). This court required a would-be plaintiff to bring forth sufficient evidence for each element of its claim in order to justify disclosure. In addition, the court applied a balancing test, under which the strength of the speaker's claim to First Amendment protection is balanced against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

      Swartz v. Doe, No. 08C-431 (Tenn. Cir. Ct. Oct. 8, 2009)

       In Swartz, a Tennessee trial court ruled that plaintiffs Donald and Terry Keller Swartz were entitled to discover the identity of the anonymous blogger behind the “Stop Swartz” blog who published critical statements about them and encouraged readers to post information on their whereabouts and activities.

      In ruling on the defendant’s motion to quash, the court adopted the Dendrite standard, which requires the following five-part test: (1) the plaintiff must notify the poster that he or she is the subject of a subpoena or discovery request; (2) the plaintiff must give the poster reasonable time to file opposition to the application; (3) the plaintiff must identify the exact statements purportedly made by each anonymous poster that give rise to each claim; (4) the plaintiff must make a prima facie or substantial showing of proof for each element of each cause of action; and (5) the court must balance the First Amendment interests of the anonymous poster against the strength of the plaintiff’s prima facie case and the need for disclosure to allow the claims to proceed. Slip op. at 7. With respect to prong four of this test, the court indicated that the factual showing “must be made by affidavit, deposition, or sworn statement, and that mere allegations of fact are insufficient.”  Id. at 8. 

      In characterizing the test, the court cut through the semantic differences between the various standards available to courts in anonymous speech cases:

      As the Solers and Krinsky courts have noted, the labels of "summary judgment" or even "prima facie" are potentially confusing.  By adopting the Dendrite analysis, the Court does not focus on the terminology, but rather the requirement that a plaintiff make a substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant's identity.

      Id. The court determined that the Swartzes succeeded in making this substantial legal and factual showing, pointing out that they submitted copies of the offending blog posts and testified regarding the falsity of the statements and damages. Id. at 9-10.

      Jurisdiction: 

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      Legal Protections for Anonymous Speech in Texas

      Note: This page covers information specific to Texas. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      The one published decision from Texas to consider the right to anonymous speech adopted a Cahill-like "summary judgment" standard that requires a plaintiff to bring forward evidence on each element of its claim (other than those dependent on the defendant's identity) before permitting disclosure of an Internet' speaker's identity. This case is described below.

      Additionally, in February 2009, a Texas court ordered Topix to turn over the identities of 178 anonymous and pseudonymous commenters to Mark and Rhonda Lesher based on claims that the comments were defamatory. It is not clear what standard this court applied.

      In re Does 1-10, 242 S.W.3d 805 (Tex. App. 2007)

      In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contained claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty. The dispute revolved around a blog called "The-Paris-site," which focuses on an Essent-run hospital in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" and "fac_p". He posted critical remarks about the hospital on the blog, including statements that, according to Essent, assert or imply that the hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the hospital of having a high incidences of bacterial infections and post-surgical complications. Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims was confidential patient health information.

      Essent filed an ex parte request with the court for an order compelling the anonymous blogger's Internet service provider to disclose his identity. After being notified of the discovery request, the anonymous blogger objected through counsel. The trial court rejected his arguments, however, and ordered the ISP to reveal his identity. Counsel for the anonymous blogger filed a special kind of appeal called a petition for a "writ of mandamus" with a Texas appellate court.

      In December 2007, the appellate court conditionally granted the writ of mandamus, ordered the trial court to vacate its previous order, and sent the case back to the trial court for further consideration. The appellate court held that the lower court had lacked authority to issue its previous order and offered the lower court guidance on what standard to apply to the case on remand. The appellate court indicated that it would follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), in requiring that a plaintiff produce evidence sufficient to survive a motion for summary judgment before ordering disclosure. "Summary judgment" is a legal term of art, and it means that the plaintiff must show that it has sufficient evidence for each element of its claim. The Texas court, like the court in Cahill, loosened this standard somewhat, indicating that a plaintiff at this preliminary stage of a lawsuit need not provide evidence for elements of its claim that are nearly impossible to show without knowing the defendant's identity (such as whether the defendant acted with the requisite degree of fault).

      For more on this case, see the CMLP's database entry: Essent v. Doe.

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      Legal Protections for Anonymous Speech in Virginia

      Note: This page covers information specific to Virginia. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Virginia follows a “good faith” test before unmasking an anonymous Internet speaker. The good faith test was first announced by a Virginia circuit court in In re Subpoena Duces Tecum to America Online and codified by the Virginia General Assembly in 2002 as Va. Code §8.01-407.1.

      Va. Code § 8.01-407.1 requires that a party seeking the identity of an anonymous poster show that the poster has made one or more communications that are or may be tortious or illegal, (such as defamatory statements) or that the party requesting the subpoena has a legitimate, good faith basis to contend that it is the victim of “conduct actionable in the jurisdiction where the suit was filed” – i.e., has a legitimate claim recognized by the jurisdiction where the suit was filed. The party seeking the information must submit a copy of the communications at issue.

      The Court of Appeals of Virginia has held that Va. Code § 8.01-407.1 does not require a plaintiff to submit evidence sufficient to demonstrate that statements are actionable in order to obtain the identity of an anonymous speaker. Rather, it is sufficient if the plaintiff submits sufficient evidence to support a good faith belief that the statements at issue may be actionable. In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014), the Court considered a plaintiff's attempt to discover the identity of anonymous Yelp users who posted negative reviews of plaintiff's services. The Court found that if the anonymous users were not in fact former customers of the plaintiff, their negative reviews would be actionably defamatory; however, the plaintiff was not able to submit evidence proving that the users were not former customers. Nevertheless, the Court upheld a subpoena for the users' identities upon the plaintiff's showing that it was unable to confirm that the users were customers after a good faith review of the records in its possession. Slip op. at 21-22.

      The party may be seeking the poster’s identity in regards to a claim the party is bringing against the poster, or the party may mean to use the poster as a witness. Either way, the statute requires that the party seeking the information show that other “reasonable efforts” to identify the anonymous communicator have failed and that the anonymous poster’s identity is important, central, or directly and materially relevant to a claim or defense.

      What The Subpoenaed Entity Must Tell You 

      When an ISP or other entity receives a subpoena requesting your identifying information, the statute requires that the ISP notify you of the subpoena within five business days of receipt. The ISP must notify you by e mail, if it has your e mail address, and it must also send a copy of the subpoena to your last known address, if available on file. The statute provides a form that the party requesting the information must send to the ISP. The ISP must in turn send the form to you by e mail, if available, and mail. The form states who is seeking the subpoena, that the ISP will be required by law to respond by providing the requested information if no written objection is filed with the court, and that you have a right to file a written motion opposing the subpoena with the clerk of court, as discussed below.

      How to File a Motion to Quash

      Any “interested person,” such as an anonymous poster whose identity is a target of the subpoena, may file a written objection, motion to quash (a motion requesting that the subpoena be voided or terminated), or motion for a protective order (a court order protecting against the disclosure of your information). If you are the anonymous poster, this means that the ISP or other entity to which the subpoena is addressed may file a written motion opposing the subpoena on your behalf, or that you may file such a motion yourself. The statute indicates that you may file your motion anonymously, signing it “John Doe” and including your e mail nickname or other relevant online alias.

      You must file such a motion at least seven business days before the date on which disclosure is sought under the subpoena. Because of the various deadlines set by statute, you could have as few as 10 days to respond to a subpoena after you receive notice of it. As a result, if you receive notice of a subpoena for your identity from your ISP, you should contact a lawyer immediately to ensure there is sufficient time to respond to the subpoena. You also may want to refer to the section on Responding to Lawsuits for more information.

      If no written motion opposing the subpoena is filed, the ISP will be required by law to respond to the subpoena by providing the information sought.

      You must serve any papers related to your motion on the party seeking the subpoena and the party to whom the subpoena is addressed on or before the date you file the motion with the court. If the ISP seeks to quash the subpoena on your behalf, it must serve any papers relating to the motion on the party seeking the subpoena and you, the anonymous poster, on or before the date of filing.

      In addition to stating the grounds relied upon for denying the disclosure, the motion to quash must address “to the extent feasible”:

      1. whether the identity of the anonymous communicator has been disclosed in any way;
      2. whether the subpoena fails to allow a reasonable time for compliance;
      3. whether the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies, or
      4. whether the subpoena subjects a person to undue burden.

      After a written motion is filed, any interested person may also request a hearing from the court. If you are the anonymous poster, you must be informed of the hearing by registered mail at your last known address.

      When the Subpoenaed Entity Can Comply to the Subpoena

      If the ISP or other entity to whom the subpoena is addressed wishes to comply with the subpoena and reveal your personal identifying information, the statute prohibits it from doing so earlier than three business days before the date on which disclosure is due. This rule is designed to give you the opportunity to object before disclosure is made. The ISP must still notify you of the subpoena by e mail, if available, and by mail, giving you the opportunity to object on your own behalf.

      Because there have been no cases involving Code § 8.01-407.1, no court has interpreted its provisions. If you know about a cases involving Code § 8.01-407.1 in Virginia, please contact us.

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      Legal Protections for Anonymous Speech in Washington

      Note: This page covers information specific to Washington. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      Washington law with regard to the protection of anonymous online speech is unclear. The only relevant Washington case is Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), which considered a subpoeana to discover the identity of an anonymous witness, as opposed to the usual situation of an anonymous defendant. For this situation, the court adopted a "good faith" standard with a few extra protections. It is not clear how this case applies to a subpoeana asking for disclosure of the identity of an anonymous defendant.

      Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001)

      Stockholders of the company 2TheMart.com sued its directors, claiming that they were responsible for a recent fall in the company's stock price. The directors tried to defend themselves by arguing that the fall in stock price was actually caused by negative comments about the company posted on an online message board by anonymous users. To support this argument, the directors subpoenaed InfoSpace, the Seattle-based company that ran the website, for the identities of the posters. InfoSpace notified the anonymous posters, and one of them filed a motion to quash the subpoena.

      The court announced a standard for deciding when a court should allow disclosure of the identity of an anonymous witness. The court required the plaintiff to satisfy the following four requirements: (1) the plaintiff seeks the subpoena in good faith and not for an improper purpose; (2) the information requested relates to a core claim or defense; (3) the information is directly and materially relevant to the claim or defense; and (4) the information that the plaintiff needs for that claim or defense is not available anywhere else.

      Applying that test, the court found that information about the identities of the anonymous posters was not directly and materially relevant to a core claim or defense. Therefore, it granted the anonymous poster's motion to quash the subpoena.

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      Legal Protections for Anonymous Speech in Wisconsin

      Note: This page covers information specific to Wisconsin. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

      The one relevant Wisconsin case, Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006), did not consider an Internet-based claim. However, the Supreme Court of Wisconsin's adoption of a "motion to dismiss" standard may be applicable to future Internet anonymity cases. Overall, this test places a higher burden on plaintiffs than do most other "motion to dismiss" standards, owing to special features of Wisconsin law, but it is not as protective of anonymity as tests that require the plaintiffs to put forward evidence, such as the "summary judgment" test used in Doe v. Cahill, 884 A.2d 451 (Del. 2005).

      Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006)

      Todd Rongstad was the president of Alliance for Working Wisconsin (AWW), a political organization. The organization sent out a mailing that accused Julie Lassa, a state representative, of various kinds of wrongdoing. Lassa sued Rongstad, AWW, Rongstad's company, and five anonymous defendants for their involvement in the mailing, which she claimed was defamatory. After several motions regarding whether Rongstad would be compelled to disclose the anonymous defendants' identities, the parties settled. However, the court had already imposed discovery sanctions on Rongstad for not giving up the names. Rongstad appealed to the Supreme Court of Wisconsin, arguing that the sanctions were illegal because they were applied over his assertion of a constitutional privilege. The appeal required the court to consider standards for compelling disclosure of an anonymous defendant's identity.

      The Wisconsin Supreme Court adopted a "motion to dismiss" standard as the test for compelling disclosure of an anonymous defendant's identity. Like "motion to dismiss" standards generally, this is a test the plaintiff can satisfy by stating a claim in its pleadings, without having to put forth evidence. The court noted with approval the summary judgment standard applied by the Supreme Court of Delaware adopted in Doe v. Cahill, 884 A.2d 451 (Del. 2005), but found that a motion to dismiss standard would provide the necessary protection for anonymous speakers under Wisconsin law. It reasoned that Wisconsin law -- apparently unlike Delaware law -- requires a plaintiff to plead the defamatory statements with particularity, and it requires the court to determine whether the pleaded statements are "capable of a defamatory meaning" at the motion to dismiss stage. (Note that lack of defamatory meaning was the basis the Cahill court invoked for quashing the subpoena and dismissing the case.) Despite this reasoning, it appears that the Wisconsin standard is significantly less protective of anonymous speech than the Cahill test.

      Jurisdiction: 

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      Legal Protections for Anonymous Speech in the District of Columbia

      Courts in the District of Columbia apply a protective test before permitting disclosure of an anonymous Internet speaker's identity.  One case in state court and another in federal court, Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009), both require a substantial legal and factual showing before ordering the unmasking of an anonymous defendant. 

      Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009); Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523 (D.C. Jan. 12, 2012)

      In Solers, a software developer sued a John Doe defendant for defamation and tortious interference over an anonymous tip submitted to an industry watchdog group claiming that the software developer had engaged in software privacy. Solers subpoenaed the watchdog group, seeking information about the anonymous defendant’s identity. On appeal, the D.C. Court of Appeals adopted a protective standard for its lower courts to follow and emphasized that a plaintiff "must do more than simply plead his case" to unmask an anonymous speaker claimed to have violated the law. 977 A.2d at 958. 

      The D.C. Court of Appeals’ test most closely resembles those set out in Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008). It requires a court to follow five steps before ordering the disclosure of an anonymous or pseudonymous speaker's identity: (1) ensure that the plaintiff has adequately pleaded the elements of a defamation (or other) claim; (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served; (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash; (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control; and (5) determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit. 977 A.2d at 954-56. With respect to the fifth prong, the court indicated that it would not require a showing that the plaintiff had exhausted alternative sources for the information, so long as the other elements of the test had been satisfied. The D.C. Court of Appeals remanded the case to the trial court for application of this test. 

      On remand, the trial court reluctantly held that the D.C. Court of Appeals' decision required enforcement of the subpoena, because the appellate court had noted that Solers had properly pleaded damages.  Nevertheless, the trial court noted its disquiet with enforcing the subpoena when Solers had admitted that it could not identify lost business or customers from the alleged defamation, and so the trial court urged another appeal. 

      A second appeal was duly filed with the D.C. Court of Appeals under the name Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523. The D.C. Court of Appeals took the opportunity to clarify the plaintiff's burden when seeking an anonymous speaker's identity, stating the plaintiff must not only plead but produce evidence of damages that resulted "as a direct consequence" of the anonymous speaker's action. Internal costs that the plaintiff incurs as a result of the anonymous speech, such as expending resources to investigate the anonymous claims, do not suffice. Moreover, the damages must be shown to exist independently of any action the plaintiff took to counteract the anonymous speech; lost profits, reluctant customers, or specific examples of impaired business reputation would help show the required damage.  Because Solers failed to present such evidence, the appellate court reversed the trial court's order enforcing the subpoena.

      Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009)

      In Sinclair, a federal district court in the District of Columbia quashed a subpoena seeking the identities of three pseudonymous Internet users. In early 2008, plaintiff Lawrence Sinclair published a YouTube video and blog claiming that he had engaged in sexual activities and done drugs with then-presidential candidate Barack Obama. In response, “TubeSockTedD” uploaded a video to YouTube stating that Sinclair was “spreading lies about Obama.” Another Internet user, “mzmolly,” posted a comment on Democratic Underground.com stating that Sinclair was a mental patient who was institutionalized on the date in 1999 when he claimed to have encountered Obama. A third, “OWNINGLIARS,” posted a comment on Digg.com stating that Sinclair was a liar and was in a mental hospital when he claimed he met Obama. Sinclair filed a John Doe lawsuit for defamation against all three and sought identifying information from the relevant Internet service providers, and the pseudonymous posters moved to quash.

      The court granted the motion to quash and dismissed the complaint in its entirety. It surveyed the case law on the First Amendment right to speak anonymously and held that, under either the Cahill or the Dendrite standard, Sinclair was not entitled to the requested discovery because his complaint was facially invalid. Specifically, the court determined that Sinclair's complaint did not plead facts necessary to establish the court's subject-matter jurisdiction over the case or personal jurisdiction over the pseudonymous defendants. In addition, the court ruled that Sinclair's defamation claims failed as a matter of law because he did not plead either actual malice or special damages, and because section 230 of the Communications Decency Act protected mzmolly and OWNINGLIARS for "simply summarizing and reporting information obtained from" a third party. In conclusion, the court stated: “Where the viability of a plaintiff’s case is so seriously deficient, there is simply no basis to overcome the considerable First Amendment interest in anonymous speech on the Internet. Sinclair has provided no ground to do so here.” 596 F. Supp. 2d at 134.

      Although the court quashed the subpoena and dismissed the complaint, it refused to award mzmolly and Democratic Underground sanctions against Sinclair because of the novel areas of law involved. Id. at 134 n.4.

      Jurisdiction: 

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      Deciding Whether and How to License Your Content

      A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.

      If you are the copyright owner of a work (and you likely will be if you created the work), such as an article, a blog post, a photograph, or a video, you can authorize others to use it. You can do this by transferring to the person or entity that wants to use your work any or all of your rights as a copyright owner, or any subdivision of those rights. Alternatively, you can license any or all of those rights (or any subdivision of them) to that person or entity.

      As the person granting the transfer or license, you have a great deal of freedom in how to structure the transaction. How you choose to do so can have a substantial impact on your ability to make money from the work, the amount of control you retain over it, and the costs associated with the transaction. Often, it will make sense to hire a lawyer in order to deal with such a transaction because of the complexity of the subject-matter, the potential flexibility of the transaction, and the potentially high stakes. On the other hand, there are three models or approaches that generally do not require the assistance of a lawyer: an "all rights reserved" approach, using a Creative Commons license, and a dedication to the public domain. Whether one of these three approaches or some other approach is best for you is a matter of personal preference. In the discussion that follows, we go into more detail to give a sense of the issues involved and to explain how you can effectively transfer or licensing your work.

      The decision about whether and how to license or transfer your work will depend on your own personal preference. There are a number of factors that you may want to consider in reaching your decision, including the potential for making money from the work, the extent of control retained over the work, the costs involved in the licensing/transfer transaction, and the permanence of the measure. These and other issues are addressed below.

      Making money from your work

      One obvious benefit to licensing/transfer is that people or businesses may be willing to pay you for use of your work. In some instances, this payment can be a significant source of income and may help support your project or website as well. In the How to Effectively Transfer or License Your Work section, we discuss three models for licensing/transferring your content: an "all rights reserved" model, using a Creative Commons (CC) license, and dedicating your work to the public domain. The most direct way of seeking revenue from exploitation of a work is to reserve all rights with respect to the public at large and then to pursue selective licensing or transfer deals in exchange for money. This is because granting a CC license to the public does not involve payment in return, although it does not rule out granting other licenses in exchange for money, and a public domain dedication obviously gives up all your rights to exploit the work. In contrast, if you are interested in contributing to, or gaining extra exposure in, an artistic, intellectual, business, or other community (perhaps with indirect financial benefits), a CC license or public domain dedication might be more appropriate.

      One thing to keep in mind is that a full transfer of your rights will probably fetch more money in the short term than a non-exclusive license, but this comes with a corresponding sacrifice in terms of control of the work and personal exploitation.

      Another thing to consider is whether your goals in relation to your work may change over time. Your aim now might be to gain exposure, but you might wish to commercialize your work down the line. Granting broad permission for others to freely use your work (through a CC license or similar) now may curtail your ability to commercialize the same work in the future. For more, see Association Littéraire et Artistique International's Memorandum on Creative Commons Licenses.

      Retaining control of your work

      Retaining control of your work is another significant issue. The important thing to remember in this regard is that you are not presented with an "all or nothing" scenario. You have significant freedom in how you structure your transfer or license, and the amount of control you retain is largely up to you. For details, please see the Which Rights Can Be Transferred or Licensed section.

      For those seeking more control, an "all rights reserved" model combined with selective licensing transactions may be the best route, but this may necessitate the help of a lawyer specializing in intellectual property licensing. A CC license offers slightly less control (because the license is given to the public at large and generally allows sub-licensing on the same terms), but it is much lower cost because the entire process is automated on the CC website. That said, you still retain significant control with a CC license. For instance, you can grant the public a license to copy and distribute your work, but bar them from making derivative works (adaptations) of it or using it for commercial purposes. For more on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.

      Are there any costs involved?

      Different costs are involved based on which approach you take. For instance, granting a CC license to the public is free, but you will not make money directly from the license. Because a CC license is non-exclusive, you can still enter into one-on-one transactions for money, but these are more complex and likely require the assistance of a lawyer, which is expensive. Registering the transfer with the Copyright Office, an optional step which some copyright transferors take to protect their interests, also carries a fee (see Copyright Office Fees). Likewise, reserving your rights with regard to the public at large and transferring or licensing your rights in one-on-one transactions for money is likely to be expensive for the same reasons. You can dedicate your work to the public domain at no cost, but by doing so you give up all control and prospect of future remuneration.

      If I transfer or license my work, is this permanent?

      Not necessarily. The length of time that a grant lasts will depend on the transfer or license arrangement you enter into. For instance, you can grant a transfer or license your rights in relation to your work for a specified duration of time (see the Which Rights Can Be Transferred or Licensed section). If you do not specify an end date in the executing document, or even if you if specify that the transfer or license is permanent and irrevocable, under the Copyright Act the grant is generally terminable by your (or your successors) within a five year window starting 35 years after the execution of a grant (see the Terminating a Transfer or License section).

      It is also worth noting that if you grant a non-exclusive license to a person, and do not receive "consideration" (payment or some other kind of benefit in exchange for the grant) from them, this license is revocable (see the How to Effectively Transfer or License Your Work section).

      How this all works with a CC license is not 100% clear. All varieties of CC license have a clause saying that the license grant is non-revocable. According to the CC FAQ:

      This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.

      It is not entirely clear whether the contractual language purporting to make the license non-revocable would stand up to a legal challenge based on the automatic termination right granted by the U.S. copyright law or the argument that a CC license is a non-exclusive license made without consideration. In any event, it is probably safest to assume that a CC license is permanent, so you should think very carefully about whether or not you are happy with the public making use of your work in the way described in the license.

      If I license or transfer my work, does it affect what I can do with the work?

      It depends. If you transfer all or one of your rights to someone else, then you may no longer exercise those rights. If you grant an exclusive license to someone with regard to a particular right or group of rights, then you are similarly prohibited from exercising those rights. But if you grant a non-exclusive license to someone else to exercise a right or group of your rights, then you are free to continue exercising the right or group of rights and authorizing others to do so. A CC license is a non-exclusive license, so granting the public a CC license does not affect your ability to use your work. For more information on what constitutes a "transfer," an "exclusive license," and a "non-exclusive license," please see the Understanding the Difference Between a Transfer and a License section.

      Can others use my copyrighted work without being granted a license or transfer?

      Yes. United States copyright law allows others to make "fair use" of your work without permission. Under the fair use doctrine, third parties are permitted to use your copyrighted work without your permission for limited and "transformative" uses, including criticism, commentary, news reporting, parody, and teaching. For example, if a blogger quotes a paragraph from an article or post on your website and compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without a license. Nevertheless, fair use is a notoriously fact-sensitive defense to a copyright claim, and it is difficult to determine beforehand whether a particular use is a fair use. See the Fair Use section for more details. For this reason, many people may prefer to seek out a license before engaging in a use that might be a "borderline" fair use. When you grant someone permission to use your work via transfer or licensing, the idea is that you are permitting them to engage in a use that would not be "fair" under the law.

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      Journalism Skills and Principles

      Whether you are just starting out with your first website or blog, or you've been publishing your work for years, it's never too late to to think about the standards and principles you want to uphold in the content that you publish. The Knight Citizen News Network sets out "the bedrock foundations of sound journalism to help citizen reporters master the fundamentals of the craft in a networked age." These five principles -- accuracy, thoroughness, fairness, transparency, and independence -- serve as useful guidelines to good journalistic practice.

      That said, there are lots of other resources out there to help you educate yourself about these and other principles of good journalism. Some of these resources are listed below. Complying with these principles and following sound journalistic practice, while not fool-proof, will help minimize your exposure to legal liability in all of the areas of law covered in this guide.

      The following resources will provide a good start:

      Jurisdiction: 

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      Dealing with Legal Threats and Risks

      Publishing your own content on the Internet sometimes seems like a daunting endeavor, especially when you read press accounts of this blogger or that website getting sued over what they publish online. The hard fact is that there are a number of legal risks involved in online publishing. Nevertheless, proactive measures exist that can help you minimize these risks and/or make them manageable. This section addresses the following four topics:

      • Managing Your Site and Reducing Your Legal Risks: This section addresses what to consider in drafting your website's terms of use and privacy policy, which are documents that help you structure your relationship with your users and inform them of your policies regarding private information. It also discusses the steps you can take in order to shield yourself from liability for the copyright infringements of your site's users and for linking to copyright infringing material from other online sources.
      • Finding Insurance: This section addresses how to assess whether your online activities are covered by your existing homeowners or renters insurance. It also discusses other option like purchasing media liability insurance.
      • Finding Legal Help: This section looks at what you should think about in deciding whether to hire a lawyer or represent yourself in a lawsuit or in responding to another kind of legal threat. It also explains what you can do to find effective legal representation.
      • Responding to Legal Threats: This section goes into detail about how to respond to the different kinds of legal threats that you may face as a result of your online publishing activities.

      Managing Your Site and Reducing Your Legal Risks

      As a website or blog operator, there are some basic steps to consider that will reduce your legal risks. One is creating terms of use/service and a privacy policy for your site or blog, which will help you structure your relationship with your users and let them know what your practices are regarding personal information.

      The second is taking steps to bring your site within the "safe-harbor" provisions of the Digital Millennium Copyright Act, which can help you avoid liability for linking to other sites containing copyright infringing material and for hosting copyright infringing material posted by your users.

      Creating Effective Terms of Use and Privacy Policies

      There are two key documents or statements that all websites should post before (or at least soon after) going "live" on the Internet. First, your site's terms of use govern your relationship with users, allowing you to set boundaries of acceptable behavior by your users and potentially limiting your liability. Second, you should create a privacy policy, which informs your users of your practices relating to private information and helps you avoid liability under a complex array of federal and state privacy laws. The following sections address these two important documents in greater detail and provide examples that you can follow in creating your own terms of use and privacy policy.

      See one of the sections listed below for more information: 

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      Privacy Policy

      A privacy policy is a statement placed in an easily visible place on a website informing users about how the website deals with users' personal information. Privacy policies generally explain whether and how users' information will be shared with third parties, including parent companies or subsidiaries. It frequently explains whether and how the website uses cookies.

      Why Is It a Good Idea to Have a Privacy Policy?

      Privacy policies let people know what you will do with information that they provide when registering with your website, as well as information that gets logged while they browse. A privacy policy allows users to find out what you do with their private information and enables them to adapt their conduct accordingly. Beyond that, a privacy policy will help you avoid liability under a complex array of state and federal laws dealing with users' private information.

      What Should You Include in a Privacy Policy?

      A well-crafted privacy policy should include the following items (although the particular items included may depend upon the nature of your website):

      • a statement explaining what kind of information you collect about your users, how you use it, and with whom (if anyone) you intend to share it;
      • a statement disclosing whether and how you use cookies and/or other tracking software;
      • a statement reminding users that data is collected through a server access log when a user browses, reads, or downloads information from the site;
      • a statement reminding users that the website operators may have to disclose user information in response to warrants, subpoenas, or other valid legal process;
      • a description of the process through which users can request changes to any of the personally identifying information collected and/or stored (you can provide an email address for notifying the website operator of changes);
      • an opt-out procedure for users to request that their information not be shared with third parties, or that their contact information not be used to send unsolicited correspondence (again, this can be done with an email address);
      • a description of the process through which the website operator will notify users of changes to the privacy policy;
      • a statement identifying the effective date of the policy.

      Another important aspect of a privacy policy is what it says about minors. If your site targets or knowingly collects information from children under age thirteen, it must comply with the Children’s Online Privacy Protection Act. For more information about how to comply with the Children's Online Privacy Protection Act, please see COPPA.org's compliance page. If you do not plan to collect information from minors, you should consider adding a statement to your privacy policy saying:

      This website's content is intended for adults and we will not knowingly collect personal information from children under 13 years of age. If you are a parent or legal guardian of a child under age 13 who you believe has submitted personal information to this site, please contact us immediately.

      There are also rules about collecting medical information and information about criminal records. Unless it is important to the purpose of your website, you should not gather this type of information. If you plan to gather this type of information, you should consult a lawyer about your data collection strategy.

      You can find good examples of privacy policies on the following sites: MinnPost.com, HuffingtonPost.com, Ars Technica, and CMLP.

      What Should You Avoid?

      It is common to see the following statement in website privacy policies: "[Name of website] will not collect any personal information about you except when you specifically and knowingly provide such information." While this kind of statement may sound reassuring for your users, it is not true in most cases. When a user visits a website, he or she provides personal information to the website operator simply by virtue of browsing, reading, and downloading material. This information includes IP address, user configuration settings, and what website referred the user to the site, among other things. It is better to tell users that this type of information is being collected automatically on standard web server access logs.

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      Terms of Use

      Terms of use (or "terms of service" or "terms and conditions") generally are a statement placed on an easily visible place on a website that governs the relationship between the site and its users or visitors. Users explicitly agree to the terms when they sign up for an account and, depending on how you write the terms, visitors may implicitly agree to them when they use the site.

      The terms generally consist of a number of paragraphs describing what you expect from your users and what they can expect from your website. Among other things, terms of use identify what users may post onto or use from your site. They also specify what your obligations are, and what you can do in terms of editing, removing, and changing material. For an example, see the CMLP's Terms of Use.

      Why Is It a Good Idea to Have Terms of Use?

      Terms of use help you put your users on notice of what you consider to be an acceptable use of your site and what you do not. They enable you to reserve the right to deny access to users who engage in objectionable conduct and to remove content that you find offensive or that may subject you to liability from third parties. It also gives you an opportunity to put language up on your website that may help protect you in the event of a lawsuit.

      Terms of use are especially important if your website gives out accounts because they help specify the mechanics of how the account system will work. But keep in mind that terms of use can also apply to visitors merely browsing the website or posting comments (assuming you allow comments without an account, which many do not).

      Terms of use are also useful in dealing with user-generated content. When a user creates a comment (or any other original expression) and posts it to your website, the user owns the copyright to that comment. Absent an agreement or license (see the Allowing Others to Use Your Work section for details), you could be held liable for copyright infringement for editing or changing the comment. By posting terms of use on your website, however, you can specify (and make clear to users) that you will have a license to edit, change, and remove all content posted to the website. These provisions in the terms of use give you effective control of user-generated content on your site, even if users own the copyright to that content.

      What Should You Include in Terms of Use?

      As discussed above, terms of use should set out the ground rules for your site. Here are some key items you should consider including in your terms:

      • terms about creating and accessing accounts;
      • a disclaimer of affiliation and/or responsibility for material posted or linked to the website;
      • guidelines for acceptable user-generated content, such as:
      Content may not be illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable.
      • a provision conditioning the posting of user-generated content on the grant of a license to the website to use and alter the content of the posting, such as:
      By posting or contributing content using these Services, you are granting [name of your website] a non-exclusive, royalty-free, perpetual, and worldwide license to use your content in connection with the operation of the Services, including, without limitation, the license rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your content, and/or to incorporate it into a collective work.
      • a provision or provisions reserving your right to terminate or restrict access to a user's account, and to delete any content posted through it;
      • a provision prohibiting the impersonation of another person (the point here is to stop a user from misleading others about their identity, not necessarily to prohibit anonymous or pseudonymous speech);
      • provisions relating to inter-user relations, such as clauses prohibiting on-site and offline harassment; and

      You can find good examples of terms of use on the following sites: MinnPost.com; iBrattleboro.com; Google; and CMLP.

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      Finding Insurance

      Even frivolous lawsuits dismissed at a relatively early stage of the litigation can be expensive to defend, and the cost skyrockets the longer the litigation continues, particularly if judgment is rendered against you. While most lawsuits never get to trial, if you lack the money to carry out a vigorous defense, the only option available to you may be to settle (perhaps even to take down the allegedly offending content or even your entire site) regardless of the merits of your defense.

      For these reasons, it is important to assess whether your online activities are covered by your existing homeowners or renters insurance. If your activities are not covered, it might be worth getting media liability insurance, even if such policies initially appear to be prohibitively expensive. Alternatively, if your online activities are part of an existing business, you may be able to add coverage to your business insurance policy through an add-on rider. Consult your insurance agent for costs and details.

      Here are a list of steps to take when evaluating your insurance coverage needs:

      1. Carefully review your existing insurance policies to see if claims related to your online activities are covered (e.g., claims for libel, invasion of privacy, copyright infringement). Review the section on Homeowners and Renters Insurance Coverage in this guide for help in making this determination.

      2. If your current insurance policies don't cover you, consider switching to another carrier that will provide coverage. See the section on Evaluating Homeowners and Renters Insurance Policies for guidance.

      3. Consider whether your state's law excludes coverage for your specific activities.  This is especially important if you make any money from your online activities. See the section on Insurance Exclusions for Business Pursuits for information.

      4. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, carefully weigh whether the income you receive is worth the loss in coverage.

      5. Consider whether media liability insurance might be a better option (for many, it may be prohibitively expensive, but the coverage can be quite comprehensive). See the section on Media Liability Insurance for help.

      To help you determine what type of insurance may be right for you, we've created an interactive question tool for evaluating your insurance options.

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      Homeowners and Renters Insurance Coverage

      If you have homeowners or renters insurance, your policy may cover some of your online activities. Most such policies cover damages and legal fees incurred in suits against the insured for "bodily injury," and "bodily injury" is often defined as including personal injury arising out of defamation or invasion of privacy. Obviously, you are only covered if your insurance contract contains this or similar language and your first plan of action should be to read your policy, paying close attention both to the body of the policy and any separate definition sections.

      You should note, however, that your policy may not include coverage for copyright or other intellectual property claims, which do not typically fall within the standard definition of "bodily injury" or "personal injury" covered by most policies.

      Homeowners and renters insurance policies generally cover both compensatory damages and legal defense costs, but not punitive damages (damages awarded above and beyond the amount necessary to compensate the plaintiff for his or her injury). This is important because plaintiffs often seek punitive damages in defamation suits, and the fear of large punitive damages might prove an insurmountable inducement to settle or remove content. On the other hand, actual verdicts (as opposed to settlements) for plaintiffs are fairly rare in these types of suits and even rarer in the case of punitive damages.

      Possible Coverage Exclusions

      Most homeowners policies exclude coverage for "business pursuits." How "business pursuits" is interpreted varies from state to state. (See the Insurance Exclusions for Business Pursuits section of this guide for more information.) In most states, your activities may be excluded from coverage if you earn advertising income from your site or blog or you collect money through other online means (say, through a PayPal "Donations Accepted" link on your site). If you are worried about losing coverage because you make a small amount of money from your site or blog, you may want to consider forgoing the advertising revenues and donations.

      In a few states, you might still be covered even if you make money if your online activities are not your "primary" occupation. In other states, you will need to show that your online activities are no more than a "hobby," even if you made some money from it. Note, however, that there may be adverse tax consequences from characterizing your business as a "hobby." You should consult a tax adviser before characterizing for tax purposes any income you make from your online activities.

      If your existing homeowners or renters insurance policy does not cover your online activities, you may want to consider switching carriers or purchasing additional coverage through an umbrella policy. See the section on Evaluating Homeowners and Renters Insurance Policies for a discussion of the terms and coverage of several large carriers.

      If you are interested in further reading on this topic, Eugene Volokh published an excellent post on the Volokh Conspiracy.

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      Evaluating Homeowners and Renters Insurance Policies

      Homeowners insurance policies (and renters insurance policies) typically provide some personal liability coverage that may cover claims brought against you arising from your online activities. As a general rule, however, the more you expose yourself to potential claims, the more you should consider coverage beyond your homeowners policy. This is especially true if your online activities even arguably constitute a business.

      In general, homeowners insurance policies do not refer specifically to claims arising from online activities, but this does not rule out the possibility of coverage for such claims. When evaluating policies, you should pay particular attention to two factors: (1) the types of potential claims covered by the policy, and (2) the scope of the policy's business activity exclusion.

      To help you consider these factors, we have reviewed five policies:

      Want to help us create a more comprehensive review? We are hoping to collect homeowners and renters insurance policies from every carrier and every state. Please contact us if you would be willing to send us a copy of your policy (with any personal information redacted, of course).

      Legal Claims Potentially Covered by Homeowners and Renters Insurance

      • Defamation and Privacy Claims

      In the course of your online activities, you may be sued for defamation, invasion of privacy, or intentional infliction of emotional distress. These claims may be covered by your insurance policy if it includes coverage for personal injury claims. Personal injury coverage is not dependent on physical injury, and commonly includes (among other things) claims for defamation (including libel and slander), "humiliation," and invasion of privacy. For more information about defamation, privacy, and intentional infliction of emotional distress claims, see the Risks Associated with Publication section of this guide.

      Of the five policies we reviewed, only the Erie and Chubb policies cover personal injury claims. The Chubb policy also includes "shock", "mental anguish", and "mental injury" under its definition of personal injury.

      • Copyright, Trademark, and Other Intellectual Property Claims

      You may also be sued for copyright or trademark infringement in the course of publishing your work online. These claims, as well as other Intellectual Property claims, do not appear to fall within most homeowners insurance policy definitions, and it is therefore unlikely that your homeowners insurance will cover you if you are sued for copyright or trademark infringement. For more information about copyright and trademark, see the Intellectual Property section of this guide.

      • Injuries you "intend" or "expect" and Punitive Damages

      None of the policies we reviewed provide coverage for injury that the insured "intends" or "expects." Additionally, none of the policies covers punitive damages. This may be particularly relevant to claims involving defamation, where plaintiffs generally seek punitive damages.

      • Bodily Injuries and Property Damage

      All five homeowners insurance policies we reviewed cover claims involving bodily injury as well as property damage.

      In general, bodily injury is defined as "bodily harm," "sickness," or "disease." The Erie policy also includes "mental anguish" in its definition of bodily injury. Additionally, each policy states that coverage for bodily harm extends only to situations where the injury results from an "occurrence," which is defined as "an accident."

      Given these constraints, if your policy is limited to coverage of bodily injury claims, you will likely not be covered for claims against you that arise from your online activities.

      Business Pursuits Exclusion

      All five policies we reviewed exclude coverage for claims arising out of the insured's business activity. There are differences in the ways that state laws treat this exclusion, as well as important variations in the policies themselves. We discuss the different state approaches in the Insurance Exclusions for Business Pursuits section of this guide.

      In order to understand the business activity exclusion in the five policies, we looked at: (1) its definition of "business" and (2) the scope of its exclusion.

      1. Definition of "Business"

      Although the Chubb policy states that it does not cover damages arising from the insured's "business pursuits" it does not define what a "business pursuit" is. The Erie policy defines "business" as "any full-time, part-time or occasional activity engaged in as a trade, profession or occupation." The Amica Mutual, OneBeacon, and Providence Mutual policies contain identical definitions: "A trade, profession or occupation engaged in on a full-time, part-time or occasional basis . . . or [a]ny other activity engaged in for money or other compensation."

      The Amica Mutual, OneBeacon, and Providence Mutual policies further state that an "activity engaged in for money or other compensation" will not be characterized as business (and therefore will not be excluded from coverage) if:

      (1) the insured received $2,000 or less in the year prior to the start of the policy, or (2) the insured engaged in a volunteer activity, and only received payment of expenses incurred in the performance of the volunteer work.
      2. The Scope of the Business Pursuits Exclusion

      The five policies that we reviewed vary a great deal in how narrowly they apply the business pursuits exception:

      • Chubb's coverage is the most favorable to the insured, as it does not exclude "incidental business at home" in which the insured has no employees and has gross revenues of $5,000 or less in any one year.

      • Erie's coverage is also somewhat favorable, covering "activities normally considered non-business" as well as all "occasional business activities." Whether blogging, for example, is "normally considered a non-business" activity is an open question.

      • Amica Mutual and Providence Mutual exclude virtually all liability "arising out of or in connection with a business" unless the participant is under 21 years old, self-employed, employs no other employees, and works either on a part-time or occasional basis. This exception to the exclusion primarily applies to jobs like baby-sitting and newspaper delivery.

      • OneBeacon's policy excludes coverage for all liability "arising out of or in connection with a business."

      Increasing Your Insurance Coverage

      If it seems likely that your online activities will fall under the business pursuits exclusion of your policy, you should consider purchasing Media Liability Insurance.

      Otherwise, given the limitations of basic bodily injury coverage, if you engage in substantial online activity you should look for a policy that includes personal injury coverage. Such a policy will likely be more expensive, but the coverage for injuries like defamation may be well worth the additional cost should someone bring such a claim against you.

      A more comprehensive alternative is to purchase an umbrella policy as recommended by the (not impartial) Insurance Information Institute, which states that such coverage typically begins in the range of $150-$300 annually. The primary effect of umbrella policies, which do cover personal as well as bodily injury, is to increase your coverage cap. Given the high cost of legal services, this may be worthwhile even if your policy already covers personal injury. Some umbrella policies also augment your coverage in other ways. The OneBeacon umbrella policy we reviewed, for example, eliminates the punitive damages exclusion; this might be crucial if you are sued for defamation, for which punitive damages are often sought.

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      Insurance Exclusions for Business Pursuits

      Most homeowners insurance policies exclude coverage for liability relating to "business pursuits." Although the exact formulation varies by state, the courts generally define a "business pursuit" as a continual or recurrent activity carried out for financial gain. In most states, courts give a broad interpretation to "business pursuits," drawing in almost any activity that results in financial gain. In these states, if you devote a non-trivial amount of time to your online publishing activities and make any money from them -- for example, through advertisements or a tip jar -- then you probably are carrying on a "business pursuit," and your coverage could be lost. Conversely, if you don't make any money from your online publishing activities (or more precisely, if financial gain is not your motivation), then you probably are not engaging in a "business pursuit," and you won't lose coverage under your homeowners insurance. As Eugene Volokh notes, "if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial." (emphasis in original).

      In other states, the courts have interpreted "business pursuits" in a narrower fashion. There, you might be able to argue that your online publishing activities are not business pursuits so long as they are not your primary occupation or making a profit is not your primary motive. In these states, going commercial does not necessarily carry the same risk of losing coverage under your homeowners insurance.

      Most homeowners policies do not have a separate provision stating what law will be used to interpret them, so courts ordinarily will apply the law of your place of residence.

      Choose from the list below to view state-specific information on the "business pursuits" exclusion in the fifteen most populous U.S. states and the District of Columbia. Keep in mind that there is no case law directly addressing the definition of a "business pursuit" in the online publishing context, so there is substantial uncertainty surrounding this area of law.

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      Business Pursuits Exclusion in Arizona

      Arizona law defines a "business pursuit" as follows:

      To constitute a business pursuit, there must be two elements: first, continuity, and, secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.

      Indus. Indem. Co. v. Goettl, 138 Ariz. 315,319 (Ariz. Ct. App. 1983) (quoting Krings v. Safeco Ins. Co., 6 Kan. App.2d 391, 393 (1981)). CMLP has identified no Arizona cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      Arizona appellate courts have interpreted the category of business pursuits in a variety of contexts. For example, the Court of Appeals of Arizona has held that childcare services operating out of the insured’s home fell within the exclusion where the insured regularly babysat at least five children, had advertised her babysitting services in the newspaper, kept regular weekday hours, and was paid for her services. Farmers Ins. Co. v. Wiechnick, 166 Ariz. 266 (Ariz. Ct. App. 1990). In another case, the Court of Appeals of Arizona held that the activities of Humberto B. “Smokey” Santillo, Sr., selling herbs and nutritional advice, constituted a business pursuit. Fimbres v. Fireman’s Fund Ins. Co., 147 Ariz. 75 (Ariz. Ct. App. 1985). The Court noted that by selling a prescription for herbs, Smokey’s activities “originated from, grew out of, flowed from and had a connection with his regularly conducted business.” Id. at 77.

      Therefore, if you live in Arizona, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in California

      California law defines a business pursuit "as a regular activity engaged in for the purpose of earning a profit." Smyth v. USAA Property and Casualty Insurance Co., 152 Cal. App. 3d 864, 869 (1984). CMLP has identified no California cases interpreting this test in the context of online publishing out of the home (or elsewhere). As a general matter, however, California cases have established that an activity need not be full-time or a primary (or even major) source of income in order to qualify as a business pursuit.

      Therefore, if you live in California, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Florida

      Florida law defines a business pursuit as "a continuous and comprehensive activity for financial gain." State Farm Fire & Cas. Co. v. Friend, 478 So.2d 1198, 1200 (Fla. App. 1985). CMLP has identified no Florida cases interpreting this test in the context of online publishing out of the home (or elsewhere). The Friend case (above) suggests that a short-term, part-time activity carried out for money may not be considered a business pursuit when the primary motive of the activity is not financial gain (in that case, the insured person was helping out a friend).

      Therefore, if you live in Florida, you may have an argument that your online publishing activities are not a "business pursuit" if your primary motivation is not financial gain. This argument might be undercut, however, if your publishing is more than a part-time, short-term activity.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Georgia

      Georgia law defines a "business pursuit" as "a usual commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision." Brown v. Peninsular Fire Ins. Co. 320 S.E.2d 208, 209 (Ga. App. 1984). CMLP has identified no Georgia cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, Georgia courts have excluded from the category of business pursuits activities that are not the insured's primary occupation, even if engaged in for profit. See for example Brown (above) and Southern Guaranty Insurance Co. v. Duncan, 206 S.E.2d 672 (Ga. App. 1974). Other courts have indicated that an activity will not be considered a business pursuit if the primary motivation is not financial gain. See for example Nationwide Mutual Fire Insurance Co. v. Collins, 222 S.E.2d 828 (Ga. App. 1975).

      Therefore, if you live in Georgia, you have a good argument that your online publishing activities are not a business pursuit if you carry them out in your spare time or your primary motivation is not financial gain, even if you make money from those activities.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Illinois

      Illinois law defines a "business pursuit" as a "continuous or regular activity, done for the purpose of earning a profit." State Farm Fire & Casualty Company v. Moore, 430 N.E.2d 641 (Ill. App. 1981). CMLP has identified no Illinois cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, Illinois courts deem even part-time and supplemental activities done for profit to be business pursuits. On the other hand, Illinois courts have determined that profit-making activities that are temporary or sporadic, or that result in compensation only irregularly, are not business pursuits. See for example the Moore case above.

      Therefore, if you live in Illinois, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Indiana

      Indiana law defines as business pursuit as "a continued or regular activity for the purpose of earning a livelihood." Mid-American Fire & Casualty Co. v. Shoneys, 843 N.E.2d 548 (Ind. App. 2006). CMLP has identified no Indiana cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      One Indiana court has held that the a for-profit activity is not a business pursuit if it does not occur continually or regularly, or if making a profit is not the primary motivation. See American Family Mutual Insurance Co. v. Bentley, 352 N.E.2d 860 (Ind. App. 1976). In that case, the insured rented storage space in his home to a third party for money, but there was no evidence that he did so regularly, or that profit was his primary motivation. In other cases, however, Indiana courts have held that an activity is a business pursuit even if the activity is not the insured's primary occupation. See for example the Shoneys case above.

      Therefore, if you live in Indiana, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Massachusetts

      Massachusetts law defines "business pursuits" as incorporating "two significant elements: profit motive and continuity." Nationwide Mut. Ins. Co. v. Bent, 1999 WL 1203774 (Mass. Super. Nov. 9, 1999). CMLP has identified no Massachusetts cases interpreting this test in the context of online publishing out of the home (or elsewhere). One Massachusetts court has indicated in reasoning not essential to its judgment that the category of business pursuits embraces “[a]ny full or part time activity of any kind engaged in for economic gain." Metro. Prop. & Cas. Ins. v. Fitchburg, 793 N.E.2d 1252 (Mass. App. Ct. 2003).

      Therefore, if you live in Massachusetts, you may be in danger of losing coverage for your online publishing activities if you make any money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic. The law in Massachusetts is not clear on this point, however.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Michigan

      Michigan law defines "business pursuits" as follows:

      To constitute a business pursuit, there must be two elements: first, continuity, and secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.

      Riverside Ins. Co. v. Kolonich, 329 N.W.2d 528, 530 (Mich. App. 1982). CMLP has identified no Indiana cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, Michigan law excludes from the category of business pursuits activities engaged in as a hobby, when financial gain is only a side consideration. For instance, in the Kolonich case (above), a Michigan appellate court reversed a lower court ruling because the insured person's activities -- teaching ceramic classes in her home, firing ceramics pieces, and selling the occasional piece -- could constitute a hobby rather than an enterprise conducted for profit.

      Therefore, if you live in Michigan, you may have an argument that your online publishing activities are not a "business pursuit" if you carry them out as a hobby and your primary motivation is not financial gain, even if you make some money from those activities. Additionally, you might be able to argue that your publishing activities are not sufficiently continuous to constitute a business pursuit, if you engage in them sporadically and they are not part of your "customary engagement" or "stated occupation."

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in New Jersey

      New Jersey law defines a "business pursuit" as an activity involving "continuity" or "customary engagement" and a "profit motive." Prudential Prop. & Cas. Ins. Co. v. Boylan, 704 A.2d 597, 602 (N.J. Super. 1998). CMLP has identified no New Jersey cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, however, the New Jersey courts include nearly all profit-making activities carried out on a regular basis in the category of business pursuits. The activity does not need to be the insured person's sole occupation or means of support, but it must be more than merely sporadic or occasional.

      Therefore, if you live in New Jersey, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in New York

      New York law defines a "business pursuit" as an activity regularly engaged in with a view toward earning a livelihood or making a profit. In other words, to constitute a business pursuit, there must be two elements: "first, continuity, and secondly, the profit motive." Showler v. Am. Mfrs. Mut. Ins. Co., 261 A.D.2d 896, 897 (N.Y App. Div. 1999). CMLP has identified no New York cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, however, the New York courts include nearly all profit-making activities carried out on a regular basis in the category of business pursuits. The activity does not need to be the insured's sole occupation or means of support, but it must be more than merely sporadic or occasional.

      Therefore, if you live in New York, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in North Carolina

      North Carolina law defines the word "business" in "business pursuit" as "an individual's paramount means of earning a livelihood." North Carolina Farm Bureau Mut. Ins. Co. v Briley, 491 S.E.2d 656, 659 (N.C. App. 1997). CMLP has identified no New York cases interpreting this test in the context of online publishing out of the home (or elsewhere). As a general matter, however, North Carolina courts have declined to include part-time work under the exclusion, at least where the insured also had a separate full-time job.

      Therefore, if you live in North Carolina, then you may have a good argument that your online publishing activities are not a business pursuit so long as they do not constitute your primary occupation or source of income.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Ohio

      Ohio law defines a business pursuit as work "engaged in regularly" which "produce[s] an income." Watkins v. Brown, 646 N.E.2d 485, 488 (Ohio App. 1994). CMLP has identified no Ohio cases interpreting this test in the context of online publishing out of the home (or elsewhere). As a general matter, however, Ohio courts have deemed activities to be business pursuits even when profit was not the primary motive and the amount of money earned was small.

      Therefore, if you live in Ohio, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Pennsylvania

       
      Pennsylvania law defines a "business pursuit" as including two elements: (1) continuity; and (2) a profit motive. Old Guard Mut. Ins. Co. v. Quigley, 1990 WL 255912, at *3 (Pa. Ct. Comm. Pl. Jan. 31, 1990). CMLP has identified no Pennsylvania cases interpreting this test in the context of online publishing out of the home (or elsewhere). As a general matter, Pennsylvania courts have excluded from the category of business pursuits activities the primary motivation for which was not financial gain.

      Therefore, if you live in Pennsylvania, then you may have an argument that your online publishing activities do not constitute a business pursuit if your primary motivation is not financial gain, even if you make some money from those activities.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Texas

      Texas law defines a "business pursuit" as incorporating two elements: "(1) continuity or regularity of the activity, and (2) a profit motive, usually as a means of livelihood, gainful employment, earning a living, procuring subsistence or financial gain, a commercial transaction or engagement." Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 644 (Tex. 2005). CMLP has identified no Texas cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, however, Texas courts recognize that "hobbies" are distinct from business pursuits. One court has defined a hobby as "a specialized pursuit, such as stamp collecting, painting, or gardening, that is outside of a person's regular occupation, usually done in a non-professional way as a means of relaxation during leisure time." United Servs. Auto. Assoc. v. Pennington, 810 S.W.2d 777, 779 (Tex. App. 1991). In that case, the insured, a car salesman, bought a horse in order to experiment with new race training methods. The court held that the jury was entitled to view this as a hobby and not a business pursuit, even though the insured admitted that he would have liked to turn the activity into a business in the future.

      Therefore, if you live in Texas, you have a good argument that your online publishing activities are not a business pursuit, so long as you can characterize them as a hobby. It will help if your primary motivation for publishing online is not financial gain, and you have other employment.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Virginia

      Virginia law defines a "business pursuit" as follows:

      To constitute a business pursuit, there must be two elements: first, continuity, and, secondly, the profit motive; as to the first, there must be a customary engagement or a stated occupation; and, as to the latter, there must be shown to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.

      Virginia Mut. Ins. Co. v. Hagy, 352 S.E.2d 316, 318 (Va. 1987). CMLP has identified no Virginia cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, the Virginia Supreme Court has given a rather broad interpretation to the category of business pursuits. In Hagy (above), the court ruled that an insured person who performed childcare in her home was engaged in a business pursuit as a matter of law, even though she testified that, after experiencing a downturn in her business, her motivation for doing so was "love for the child rather than the prospect of financial gain." The court noted that the childcare operation bore all the outward signs of a business for profit and found that even a small amount of income was sufficient to provide evidence of a "profit motive."

      Therefore, if you live in Virginia, you may be in danger of losing coverage for your online publishing activities if you make money from your website or blog, such as through advertisements or a tip jar, unless those activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall state trend.

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      Business Pursuits Exclusion in Washington

      Washington law defines a "business pursuit" as an activity that is (1) conducted on a regular and continuous basis; and (2) profit-motivated. Stuart v. Am. States Ins. Co., 953 P.2d 462, 465 (Wa. 1998). CMLP has identified no Washington cases interpreting this test in the context of online publishing out of the home (or elsewhere).

      As a general matter, however, Washington courts give this test a broad interpretation. In order to be deemed a business pursuit, an activity does not need to be one's sole source of income and does not need to be full-time, nor does the activity need to be motivated solely by profit. "Some" profit motivation is sufficient to make an activity a business pursuit, so long as it is conducted on a regular and continuous basis. See, e.g., Stoughton v. Mutual of Enumclaw, 810 P.2d 80 (Wash. App. 1991).

      Therefore, if you live in Washington, you may be in danger of losing coverage for your online publishing activities if you intend to make a profit from your website or blog, such as through advertisements or a tip jar, unless your activities are temporary or sporadic.

      Note that specific language in a policy might lead a court to a result different from the overall trend.

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      Business Pursuits Exclusion in the District of Columbia

      CMLP has identified no District of Columbia cases interpreting the "business pursuits" exclusion. If you know of a case on this topic, please contact us.

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      Media Liability Insurance

      If your online activities are not covered under your current insurance policies, a growing number of companies are offering media liability insurance. While these policies are expensive -- perhaps prohibitively so for a newly formed business -- they can also be quite comprehensive. They typically cover costs to defend against suits brought for:

      • libel, slander, and defamation.
      • invasion of privacy (a growing concern, as suits arising from newsgathering activities are not hampered by the First Amendment concerns that make libel and slander suits difficult to win).
      • copyright infringement and other intellectual property-related suits.
      • damages resulting from errors, omissions, misstatements or misleading statements made by you.

      Media liability policies typically have a minimum coverage of $500,000 - $1 million and can run all the way up to $100 million for large publishers. The premiums may be as low as $500 a year, but typically begin at $2,500. Media liability insurance is a growing business with more companies underwriting policies every year, so it makes sense to shop around.

      To help you determine what type of insurance may be right for you, we've created an interactive question tool for evaluating your insurance options.

      Obtaining Insurance.

      There are two options for obtaining media libility insurance: (1) you can purchase insurance through a group or association (like the Media Bloggers Association or The Authors Guild), or (2) purchase your own policy.

      Purchasing insurance through a group or association often has the benefit of offering lower premiums. There can be some downsides to group policies, however. The first issue to consider is whether the policy aggregates damages across the group. If so, one large claim against an individual group member would decrease the amount remaining on the policy limit for the other group members. The second issue to consider before obtaining a group insurance policy is that these policies typically give you less control over the handling and settlement of claims made against you, in many cases resting settlement authority with the insurance company.

      If you decide to obtain your own media liability insurance, there are a number of carriers that provide policies in this area. Some of these carriers include: ThinkRisk, Chubb Group, AXIS PRO, First Media Specialists, ACE USA, InsureNewMedia, AIG, Darwin National Assurance Company, The Hartford and Hiscox USA. Keep in mind that you will likely have to go through a licensed agent or broker to secure coverage from these companies.

      There are several things to consider when shopping for a media liability policy:

      • International Coverage: Increasingly, traditional and non-traditional journalists are finding themselves sued abroad in jurisdictions more favorable to plaintiffs than the United States. If you are likely to touch on foreign issues or discuss foreign citizens in any way, you might want to ensure that your policy covers you for suits brought overseas.
      • Settlement: Many insurance policies include "hammer" clauses, which specify that the insurer, rather than you, gets to decide whether to accept a settlement (at the penalty of losing or drastically reducing coverage if you don't acquiesce). Because insurers are worried about their economic bottom line rather than your reputation (or good journalism, for that matter), you and your insurance company may not agree on when is a good time to settle a lawsuit. Insurance companies sometimes include clauses giving them a say in whether or not you will print a retraction (something that can limit liability or damages in many states -- please see the Overview of Retractions section of this guide for more information).
      • Punitive Damages: Some policies cover punitive damages and some do not. While actual awards of punitive damages against citizen journalists are likely to be relatively rare, this coverage may provide you with peace of mind and also enable you to fight rather than settle suits you believe are meritless.
      • Coverage Period: Some policies cover you for any claim filed against you during the policy period; others, for any claim brought against you for an incident that occurred during the policy period. (To determine which your policy covers, look at the section describing the "triggering event."). The latter gives you more protection should you discontinue your site, terminate your policy, and subsequently find yourself embroiled in a lawsuit.
      • Attorney's Fees and Policy Limits: Policy limits are generally in the neighborhood of $500,000 - $1 million, although individual policies can be higher or lower. All policies will pay attorney's fees, but some deduct defense costs from policy limits and some do not. Because such fees can be significant, this may make a large difference in the actual coverage of your policy.
      • Retention Fee: In addition to your yearly premium, many policies also have a separate retention cost in the event of litigation. These fees typically run $5,000 - $10,000, and may or may not be recoverable.
      • Counsel: Some policies allow you to select your own lawyer, while others do not.
      • Financial Security: It is important to make sure your policy is underwritten by a company that is financially secure.
      • Lawyer's Opinion: Some insurers require that you hire a lawyer to assess your chances of being sued and write an opinion letter to the insurer before it will underwrite a policy. The costs of this can be quite substantial.

      The Application Process.

      Depending on the company you choose, you may be able to apply for media liability insurance through a direct application process, or you may have to go through a broker, agent or underwriter. Generally, plans that go through an underwriting process are a bit more expensive, but have greater flexibility in tailoring the plan to your needs.

      Before contacting the insurance company, you will want to gather the following information:

      1. Address of your website
      2. Subject area of your content - Financial, News, Adult-only Content, etc.
      3. The source of your content - yourself, employees, third parties, etc.
      4. Your consent and disclaimer policies
      5. Percentage of your revenue derived from different activities on the website (advertising, paid memberships, etc.)
      6. Any interactive features on your website (auctions, downloads, forums, comments)
      7. Contracts with any independent contractors or joint venturers
      8. Any record of consultations with a lawyer regarding the risk associated with your site (some insurance policies will require this)
      9. A list of the activities that are likely to create your greatest exposure to liability and what steps you have taken to minimize such exposure
      10. A list of techological protections you use for your website and associated data (firewall, encription for secure transfers, etc.)
      11. A list of the activities for which you would like insurance protection
      12. A listof any additional insureds or third party beneficiaries, such as employees or third parties that may be contributing content to your site

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      Interactive Question Tool for Evaluating Your Insurance Needs

      To help you determine what type of insurance may be right for you, we've provided a decision tree below. For basic information on insurance, see the page on Finding Insurance.

      Directions.

      For ease of use, you can use the control bar at the bottom of the graphic to zoom in and out.  The first icon from the left will center the decision tree in the window, while the second icon from the left will expand or contract the nodes on the decision tree.  You can move or recenter the decision tree by clicking and draging the image.

      Clicking on the globe icon next to the nodes will take you to a corresponding page of the Legal Guide with additional information.

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      Finding Legal Help

      If you are faced with a situation that needs legal attention, you basically have two options: handle the matter yourself or seekprofessional legal help.

      Representing yourself in a legal proceeding may hold someinitial appeal due to the cost of hiring a lawyer or your interest intaking control of the situation. Before you decide to handle a legal matter yourself, however, review the section on Representing Yourself to assess whether you are ready to handle the matter and whether you have access to the resources you will need to succeed.

      If you are considering handling the matter yourself, be forewarned that a seemingly simple issue can quickly grow complex. Inmost situations you will be better off hiring a lawyer, who will assess the merits of your case, explain your options, and help you achieve the best result.

      If you decide to seek professional legal help, you can hire a lawyer directly or, depending on your situation, request legal assistance from a nonprofit legal assistance organization such as Legal Aid or the Citizen Media Law Project. See the sections on Hiring a Lawyer or Nonprofit Legal Assistance for more information.

      If you are a journalist or online publisher you should also visit our sister site, the Online Media Legal Network (OMLN), a free initiative that connects lawyers from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues. More information is available here.

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      Representing Yourself

      Assessing Your Situation

      It's not easy to decide whether to represent yourself. Before you make a decision, take some time to consider whether your personality, work ethic, and lifestyle are suited for the task ahead. The following questions should help you assess your situation:

      • Do you have the time to learn the substantive and procedural aspects of the laws involved?
      • Is your case relatively straightforward?
      One way to make this determination is to attend a free legal clinic in your area. Call the clerk's office of your local court and ask if there are free legal clinics or a Volunteer Lawyer for a Day program. If there is one, attend it and discuss your case with the lawyer present. You should come away understanding more about the complexity of your case and whether or not you feel able to represent yourself.
      • Do you feel comfortable negotiating with the opposing party (or the lawyer representing the opposing party)
      • Can you clearly express yourself in writing and remain emotionally detached from the legal process?
      • Are you organized in your record-keeping?
      • If your case involves going to court, are you willing to:
      • speak in public?
      • understand the legal aspects of your case well enough to explain it to a judge?
      • meet deadlines?
      • perform legal research and understand court rules, cases, and statutes?
      • produce documents to file in court?
      • take the time and effort to understand and respond promptly to papers issued by the court?
      • respond to papers received from the opposing party?
      • free up time in your schedule to attend court hearings?

      What it Means to Represent Yourself in a Legal Proceeding

      If you are involved in litigation and decide to represent yourself, you will be referred to as a pro se litigant. While a court will hold you to the same standards as a lawyer, most courts will be less stringent with mistakes made by pro se litigants, and might even have a staff attorney at the courthouse to guide you through some of the procedural requirements. However, not all courts are helpful and can in fact be hostile to pro se litigants. Keep in mind that should you come to a point during the legal proceedings where you would prefer to be represented by a lawyer, you may have the option to do so.

      Where to Find Help

      In addition to the clerk's office mentioned above, there are several nonprofit institutions and other organizations that may be able to help with your case and provide guidance and resources. In extremely rare cases, they may even offer to represent you in court.

      Other good resources include legal form books. Form books contain legal forms that lawyers use in drafting a legal document. Legal forms come in templates with suggested language and must be tailored to fit the situation. There are many types of legal forms available, categorized by subject, procedure, court, or state. Bear in mind that the forms are not meant to be used as boilerplate language. You will need to perform additional research to make sure that the form is appropriate to the situation and complies with current law. Here are some sites that have legal forms:

      You can also visit your local law library (at a law school or courthouse) to find legal form books.

      Additionally Nolo.com is another wonderful legal resource. Nolo publishes print, software, and online manuals covering a wide variety of legal issues, including materials on taxes, employment, intellectual property, and how to operate a small business. The publications are written for the layperson and are terrific do-it-yourself legal guides.

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      Hiring a Lawyer

      Like doctors and other professionals, lawyers range from general practitioners to specialists. Typically, lawyers who offer general legal services concentrate on legal issues concerning the general public—for example, wills or real estate transactions. However, if you are seeking a lawyer because of legal problem associated with your online activities, you should look for a specialist who focuses on media law or intellectual property issues on the Internet. If you want to set up a business, you should find a lawyer with experience in corporate and tax matters.

      Finding the right lawyer

      There are several ways to find a lawyer:

      • Personal Recommendations
      The best way to find a good lawyer is by word-of-mouth. Ask your family, friends, or colleagues for recommendations. If you previously hired a lawyer for another situation, ask her for references in the field you need. Don't stop at getting names and contact information; press the referrer for reasons why he thinks the lawyer is good.
      • Bar Associations and Other Organizations
      Your state or county bar association will likely have a referral service that matches your legal problem with an appropriate lawyer. Visit the American Bar Association's Consumer Guide to Legal Help to find bar associations in your state. Additionally, other types of organizations are focused around a specialty rather than geography. For example, the Media Law Resource Center provides a list of their law firm members who specialize in media law, including First Amendment and intellectual property law. (Organizations that might provide legal representation without a fee are covered under the Nonprofit Legal Assistance section of this guide.)
      • Advertisements and the Yellow Pages
      You may come across advertisements for a lawyer's services through tv, radio, magazines, newspapers, websites, or phonebooks. Remember that the advertisement has little to do with the lawyer's abilities. You should thoroughly research the lawyer by following the steps outlined below.
      • Your Insurance Company
      If someone has brought a lawsuit against you, check with your insurance company to see if you have liability insurance for the situation at hand. If you do, your insurance company should provide you with the necessary legal defense and indemnify you if any money needs to be paid to the other party. In this case, you will be represented by the lawyer from the insurance company and will not need to seek a lawyer of your own.

      Once you have a list of lawyers, research them as much as possible. The lawyer's education background and the firm that the lawyer is associated with may be an indication of the quality of a lawyer's practice, but the best indicator of a lawyer's service is experience. Additionally, check your list of lawyers against a legal directory, a resource that contains peer ratings of lawyers, to see the opinions of others in the legal community. Martindale Hubbell is a highly regarded legal directory and is available online.

      Initial Meeting With a Lawyer

      Once you're comfortable with your list, call each lawyer to set up an initial meeting. Apart from the where's and when's of the meeting, you should make sure to find out:
      • approximately how long the meeting will take
      • what documents you should bring
      • whether the lawyer charges for an initial meeting (and if so, the amount and method of payment)
      • whether the lawyer can provide you with a list of references from current or former clients
      You should prepare so that the meeting stays focused, allowing you to gauge the lawyer's response to your situation.
      • Gather all documents pertaining to the situation in a file. This includes printouts of any relevant emails and webpages. Additionally, note dates and times you received each document.
      • Write down everything you know about the situation, including:
      • the nature of the actions that triggered the situation
      • when and how you received any documents about the situation
      • any relevant interactions you’ve had with anyone involved in the matter
      The act of writing the summary allows you to: record events you may forget during the conversation; better understand your position; and focus your conversation with your prospective lawyer. If there is a lawsuit, you may be required to disclose this summary to the other side, so keep to the facts and do not include your opinions.
      • Prepare a list of questions. The lawyer will ask you a lot of questions to help her evaluate the strengths of your case; you should do the same to evaluate the lawyer. Alexander Hawes, LLP has a terrific approach to identifying the information you need, as does the Monroe County Bar Association.

      Understanding Legal Fees

      The lawyer should go over her fee arrangement during your initial meeting. Bills may run high and you must understand the various fee structures to avoid unpleasant surprises.

      There are several ways you may be billed for a lawyer's services:

      • Hourly fee: The most common fee structure, an hourly fee is a person's hourly rate times the hours spent working on your case. Hourly rates will probably vary from lawyer to lawyer within a law firm, and from lawyer to non-lawyer. If money is an issue, ask whether a junior lawyer can work on the case while a senior lawyer reviews the final product. Make sure to get a breakdown of the hourly rates for each person who will work on your case, and an estimate on the length of time each person will spend on your case. The amount of work put into a case varies and it's impossible to project a definitive amount; however, a good lawyer should be able to give you a ballpark figure based on her prior experience.
      • Retainer Fee: A retainer is an advance payment, or down payment, to be applied towards the hourly fees earned later. (Note: in some cases, a retainer fee also refers to the amount paid to an attorney on a regular basis to keep the attorney available for handling legal services.)
      • Fixed fee: A fixed fee is a flat amount that covers a specific legal service. For example, if you need help starting your business, a lawyer may charge you a fixed fee for helping you to incorporate.
      • Contingency fee: In a contingency fee arrangement, the lawyer only gets paid if she is successful in getting you an award of damages, whether through trial or settlement. A lawyer's portion of the award is usually a fixed percentage of the total amount, depending upon the type of case involved.
      • Mixed Fee: A mixed fee arrangement combines contingency and hourly fees.
      • Costs: Fees go to the lawyer for her work, while costs cover the payments incidental to those services. For example, if you've hired a lawyer to help you incorporate your business, one cost will be the filing fee for the articles of incorporation. For purposes of a lawsuit, talk to the lawyer about advances for the costs associated with litigation.

      The First Meeting

      Plan to arrive 5 minutes early so that you can be ready as soon as the meeting starts. Bring your summary and file of documents. As you explain the situation be candid. Remember, the lawyer needs all of the information, good and bad, to assess your case and give you a useful road map of what lies ahead. Except in rare cases, lawyers are bound by professional rules to keep the initial meeting confidential, so you should not feel constrained. You should already know how long the meeting will last, so keep an eye on the time and make sure the lawyer addresses all of your questions.

      Post-Meeting

      After you've met with a few lawyers, compare how they approached your situation and think about whose counsel you valued the most. If you met with a lawyer who was personally recommended to you, don't be surprised if you don't like her as much as the recommender did. There are many different styles of lawyering, and you may not be as comfortable with some as you are with others.

      If there are one or two lawyers with whom you connected, call their references and speak to former clients. Once you're comfortable making the decision to hire a lawyer, make sure you have a written fee agreement to avoid billing surprises.

      Lastly, don't lose touch with your case just because you have hired a lawyer. Your lawyer works for you. You need to set the goals, and your lawyer will use her legal expertise to help you achieve them. The only way for you to make decisions about your case is to stay informed.

      Nonprofit Legal Assistance

      Many lawyers and legal organizations provide pro bono work. In common usage pro bono refers to volunteer work done for the public good. In the legal field, lawyers who do pro bono work take cases for those who are disadvantaged and unable to secure legal assistance. Additionally, legal advocacy organizations (organizations that take on cases) usually provide pro bono representation for their clients.

      There are a number of nonprofit institutions and other organizations that may be able to represent you or provide other legal assistance. Should the organization offer to represent you in court, you will be in the enviable position of enjoying free legal work done by lawyers passionately committed to the underlying causes of your situation. Note that these lawyers may be working on your individual case because they want to break new legal ground or advance the law in a particular way to benefit society as a whole. Thus, you will want to make your individual goals clear to them. More often than not, they will share your goals and you'll be able to forge ahead.

      If you are a journalist or online publisher in need of legal assistance, please visit our sister site, the Online Media Legal Network (OMLN), a free initiative that connects lawyers from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues. More information is available here. 

      See the Nonprofit Legal Assistance Organizations by State section for organizations in your state that may be of help. On a national level, here are some organizations whose work may be of interest (listed alphabetically):

      • American Civil Liberties Union: An advocacy organization that focuses on individual rights as guaranteed by the Constitution, including First Amendment rights. The ACLU provides a list for all its affiliates in the country.

      • Chilling Effects: A fantastic website that focuses on promoting the protections that the First Amendment and intellectual property laws give to online activity. Contact Chilling Effects.

      • Digital Media Law Project (DMLP): Yes, we put ourselves on our own site. We provide training and resources for individuals and organizations involved in digital media. We also perform research and provide advocacy on free speech, newsgathering, intellectual property, and other legal issues related to online speech. Contact us!

      • Electronic Frontier Foundation (EFF): EFF is an advocacy organization dedicated to digital freedom. Specifically, EFF works on free speech, privacy, and consumer rights in the digital domain. Contact EFF.

      • Electronic Privacy Information Center (EPIC): A public interest research center focusing on the overlap of privacy issues, the First Amendment, and constitutional values. Contact EPIC.

      • Fair Use Network: An initiative of the Brennan Center for Justice at NYU School of Law, the Fair Use Network provides information about intellectual property law and supports fair use and other free expression safeguards within the law. The website also lists prominent public interest organizations and professional associations that provide guidance and referrals for people facing issues over speech, information, and fair use rights. Contact the Fair Use Network.

      • The Freedom Forum: A foundation that works to promote free press, free speech, and newsroom diversity. Contact the Freedom Forum.

      • Legal Aid Offices: Legal Aid organizations provide legal assistance to those who are unable to afford law representation. They are funded variously by private foundations, individual donors, or the federal, state and local governments. Pine Tree, a legal aid organization in Maine, lists legal aid offices by state.

      • Lex Mundi Pro Bono Foundation: A nonprofit affiliate of Lex Mundi, the world's leading association of independent law firms. The Foundation calls upon Lex Mundi's unique global network of 160 top-tier commercial law firms to provide legal assistance to select "social entrepreneurs" on a pro bono basis.  Contact them here.

      • Media Blogger Association: An association focused on: promoting, protecting and educating its member-bloggers; supporting the development of citizen journalism; and helping to extend the power of the press. Contact the Media Blogger Association.

      • Media Law Resource Center: Information clearinghouse that monitors developments in First Amendment law. Contact the Media Law Resource Center.

      • National Campaign for Freedom of Expression (NCFE): An advocacy organization that provides support, to artists and arts communities to promote artistic freedom. The NCFE acts as a liaison between the arts community and the national civil liberties community, and also lists other similar organizations. Contact the First Amendment Project and the NCFE.

      • National Lawyers Guild: An association of progressive lawyers, law students, paralegals, judges, legal secretaries, and community activists. Local chapters maintain attorney referral lines.  Contact the National Lawyers Guild here.

      • Public Citizen: A consumer advocacy organization that represents consumer interests in Congress, the executive branch and the courts. One of its iniatives is to fight for free speech on the internet. Contact Public Citizen.

      • Reporters Committee Freedom of Press: A nonprofit organization committed to providing free legal assistance to journalists. Contact the Reporters Committee Freedom of Press - Scroll to the bottom to find the Legal Defense Hotline.

      • State Bar Associations: Many state bar associations set a recommended number of hours per year for lawyers to perform pro bono services. Your state bar association may have a referral list of lawyers who are willing to take on pro bono cases. The American Bar Association has a state-by-state listing for state and local bar associations.

      • Student Press Law Center: A legal assistance agency that focuses on censorship in student news media. The Center provides free legal advice and also has an Attorney Referral Network of lawyers across the country who are available to provide free legal representation to local students when necessary. Contact Student Press Law Center.

      • TrustLaw Connect: TrustLaw Connect is a free international pro bono vehicle designed to make it easier for organisations with limited means to access free legal assistance and simpler for lawyers to engage in high impact pro bono work.  Contact them here.

      • Volunteer Lawyers for the Arts (VLA): VLA provides free or cheap legal help for 'struggling' artists and other members of the arts communities. The New York VLA has a list of the VLA offices in the country with their contact information.

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      Nonprofit Legal Assistance Organizations by State

      Choose your state from the list below for more information about nonprofit legal assistance organizations in your state.

       

      Nonprofit Legal Assistance Organizations in Arizona

      The following organizations provide legal assistance to individuals and organizations in Arizona:


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      Nonprofit Legal Assistance Organizations in Georgia

      The following organizations provide legal assistance to individuals and organizations in Georgia:

       

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      Nonprofit Legal Assistance Organizations in Indiana

      The following organizations provide legal assistance to individuals and organizations in Indiana:

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      Nonprofit Legal Assistance Organizations in Michigan

      The following organizations provide legal assistance to individuals and organizations in Michigan:

       

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      Nonprofit Legal Assistance Organizations in New Jersey

      The following organizations provide legal assistance to individuals and organizations in New Jersey:

       

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      Nonprofit Legal Assistance Organizations in North Carolina

      The following organizations provide legal assistance to individuals and organizations in North Carolina:


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      Nonprofit Legal Assistance Organizations in Washington

      The following organizations provide legal assistance to individuals and organizations in Washington:

       

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      Nonprofit Legal Assistance Organizations in the District of Columbia

      The following organizations provide legal assistance to individuals and organizations in the District of Columbia:

       

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      Subject Area: 

      Responding to Legal Threats

      Even if you have done everything right and taken every possible precaution, there may come a time when you are sued or receive a legal threat. The first thing you should do is take a deep breath and assess the situation.

      First, determine what type of legal threat you received. Most legal threats come in the form of a letter or email. Typically, the letter or email will demand that you cease whatever activity is being complained about and desist from engaging in the conduct in the future. If you receive such a letter or email, you should carefully check to see if the correspondence includes an attachment that bears the name of a court or otherwise resembles a complaint or legal filing. Consult the following examples to determine what type of threat you've received:

      Second, weigh your options as to how to respond. It is imperative that you DO NOT DELAY. Even if you have only received a threatening letter or email and have not been sued, you should take the threat seriously and review the Responding to Correspondence Threatening Legal Action section of this guide to help you formulate a response. If you receive a lawsuit or subpoena, you should review the Responding to Lawsuits or Responding to Subpoenas sections of this guide to determine how to respond.

      Third, consider hiring a lawyer or seeking legal self-help. Even if you believe the legal threat you've received is meritless, it is best not to minimize the situation. Do not assume that the threatening party will simply go away. Speaking to a lawyer, even if it is only a phone call, or doing some legal research can help to set your mind at ease and get you started on the right path to deal with the legal threat. See our Finding Legal Help section for some guidance.

      Jurisdiction: 

      Subject Area: 

      Responding to Correspondence Threatening Legal Action

      You’ve received a letter or email threatening legal action. Now what? First, do not panic. Don’t immediately comply with the letter, get angry and write a fiery response, or destroy the letter in the hope that the issue will go away. You have many decisions to make on how to respond, and a cool head will serve you well. Although the correspondence will be unique to your situation and the CMLP cannot give you specific legal advice, here are some guidelines to help you determine your course of action.

      1. Look carefully at the letter’s contents.

      If a lawsuit complaint, subpoena, or other legal filing is attached, refer to our sections on Responding to Lawsuits and Responding to Subpoenas for guidance on how best to proceed.

      2. Check to see who sent the letter.

      If the letter has been signed by anyone but a judge or court official, in all likelihood you have been sent a “cease and desist” letter asking you to stop doing something, or to remove an item from your blog, online post, or website. Even if it is a lawyer who authored the letter, do not immediately assume that the letter has merit and that you are in the wrong. Instead: a. Determine whether the sender has specified a time by which she expects you to comply with her wishes. If you have a reasonable amount of time to respond, keep going down this checklist. If the sender expects immediate compliance, notify the sender that you received her correspondence, are taking it seriously, and need time to investigate the claims she has made. Give her a date (one providing you with a reasonable amount of time to figure out your response) when you will respond further—and keep to it. b. Keep note of when you received the letter; good record-keeping will be important in the event that the sender files a lawsuit against you. If the letter has been signed by a judge or court official, you most likely have received an order mandating some action on your part. You should immediately comply with order, as disobeying a court order can have negative repercussions. After complying with the order, you have three choices: do nothing more, appeal the order, or, if a hearing is scheduled, prepare for the upcoming hearing in which you will have an opportunity to be heard and to present evidence. Refer to our sections on Responding to Lawsuits and Finding Legal Help in order to decide which choice is best for you.

      3. Review the substance of the letter or email.

      See if the sender has clearly explained the legal basis for her arguments that you need to stop the activity described. Other sections of our legal guide, especially the Risks Associated with Publication and Intellectual Property sections, may help you understand the terms used in the correspondence. If the sender does not provide a legal basis for her claims or if you are unable to understand what it is she is saying, you should request clarification.

      Determine what law the sender is using to support her arguments. If the law is from a country that’s different from the one you reside or work in, it likely does not apply to you. However, given that such determinations often involve complex legal analysis, you may want to check with a lawyer to ensure this is the case before disregarding the letter. If you’re wrong, your response, or lack thereof, may work to the sender’s advantage should she bring a lawsuit against you. Refer to our section on Finding Legal Help for resources to use in making this determination.

      Determine whether the letter relates to material posted on the site by a user.

      • If the letter demands that you remove material in a user post because the material is defamatory, private, misappropriated, or negligent, you are likely to be immune from liability under section 230 of the Communications Decency Act. See our Primer on CDA 230 for more on this subject.
      • If the above does not apply, or if the material was posted by you or your colleagues rather than by a user, you will need to respond differently as outlined below.

      4. Review the situation and the facts

      Once you have a sense of why the correspondence was sent, write down everything you know about the situation, including: when you received the correspondence, the nature of your actions that triggered the sender’s letter, and any relevant interactions you’ve had with the sender. However, if the sender sues you for not complying with her letter, you may have to provide this summary, so keep to the facts only and don’t include your opinions about the situation. The act of making the summary is valuable for you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the claim’s validity.

      5. Determine how best to proceed.

      In the course of your research and fact gathering, you will probably come to one of three conclusions:

      The law protects your activity: Go ahead and draft a letter or email back to the sender explaining why you think your actions are appropriate. Stand your ground, but be polite as abrasive language is likely to result in inflaming the recipient and making the situation worse. Explain to the threatening party that you will be adding the sender’s letter or email to the CMLP Legal Threats Database--and do so! It often helps to ask someone you trust to review and edit your letter before you send it.

      The law does not protect your activity: If you determine that your activity is not legally defensible, stop it immediately and do not wait for the sender to file a lawsuit against you. In many cases, if you do not cease the activity you may be found to have “knowingly” or “willfully” violated the sender’s rights, which will likely result in larger damages or penalties. Do not ignore the threat on the assumption that no one would sue you because you don't have a lot of financial assets, as recent changes to bankruptcy laws may leave you vulnerable. Oftentimes, acquiescing to a legitimate request will make the threat go away. However, if the sender demands payment of some kind, we strongly advise you to review the section on Finding Legal Help.

      You just can’t tell what the law says: Don't be surprised if you are unable to determine what course of action to take. If you have already requested clarification from the sender and are still unable to determine whether their legal claims are valid, you should review the section on Finding Legal Help for additional guidance.

      6. Consider whether you should notify your insurance company that you have received a legal threat.

      You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.

      7. Add the sender’s letter or email to the CMLP Legal Threats Database.

      This is an important action because creating an entry in the Legal Threats Database will help others who receive similar letters know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

       

      Jurisdiction: 

      Subject Area: 

      Responding to Lawsuits

      Being on the receiving end of a lawsuit is not a pleasant experience, but you cannot afford to let your emotions dictate your actions. This is not the time to fire off incendiary emails to others about the lawsuit nor should you contact the person who has brought the suit against you. Your goal at this point should be to thoroughly understand your position and gather all the information you can.

      Go through the checklist on this page to better understand the process in front of you. But first, there are two technical terms that you will need to become fluent with right away: for purposes of the lawsuit, the person who sued you is called the plaintiff, while you are known as the defendant.

      1. Do you have a lawsuit on your hands?

      It's important that you understand the papers you've received. While the following is not definitive, most lawsuits contain the following attributes:

      • a court location is listed at the top of the first page, i.e. the "United States District Court for the Northern District of California" or the "State of Rhode Island, Providence, S.C., Superior Court"
      • two columns right after the heading which are separated by a vertical line made of ")" or ":" characters.
      • your name in the left column, listed after the "v."
      • the word "Complaint", or "Petition" in the right column or in the title immediately following the end of the two columns.
      Examples of lawsuit complaints:  Mayhew Complaint, Ronson Complaint, and Pivar Complaint.

      If none of these features are present you may be in possession of a different type of legal document—check our sections on Responding to Correspondence Threatening Legal Action and Responding to Subpoenas for help in determining what you received.

      If the features described above apply, you have received a complaint, which is a legal document initiating a legal action and explaining the reason for the lawsuit. Accompanying the complaint should be a summons, a legal document from the clerk of the court where the complaint has been filed. A summons lets you know that the plaintiff has brought a lawsuit against you, and also gives you a date by which you need to file an answer or other response. An answer is your response to the complaint: whether you agree with the facts stated in the complaint and/or whether you think the complaint is invalid for procedural reasons.

      Highlight, circle, and underline your response date—you will not want to miss the deadline for filing your response or else the court may accept everything that the plaintiff has asserted in her complaint as true and then rule against you.

      If no summons accompanies the complaint, call the clerk of the court listed in the complaint, and find out whether the plaintiff actually filed it. If the complaint has not been filed, you should not set the documents aside because the fact that the sender has taken the time to prepare a draft complaint shows that she takes the situation seriously. However, lawyers sometimes send legal-styled documents to confuse and intimidate a defendant into acquiescing to their demands. Keep reading this section to prepare for the possibility of a lawsuit.

      2. Did you properly receive the complaint and summons?

      If you have received both a complaint and a summons, then the plaintiff has initiated a lawsuit against you. Since both documents signal the beginning of the lawsuit, the law requires that you receive (are served) both these documents in specified ways. It is important that you check to see what the relevant requirements are for proper service in your jurisdiction.

      To do so, you'll need to first find out what kind of court issued the summons. If the title contains the words "United States District Court", then you have been sued in federal court. On the other hand, if title contains the name of a state, (for example: Commonwealth of Pennsylvania) and does not contain the words "United States District Court", you have been sued in state court. It is beyond the scope of this guide to cover all of the requirements for service. If you think you might not have been properly served, you can:

      • call / visit the civil clerk's office of the court to ask about the requirements
      • go to your local court library
      • search online for the information (check the court's website first)
      • contact a lawyer; see the section on Finding Legal Help

      If you do not believe that you were served in the proper way, you need to inform the court about the reasons why in your answer. You will receive a notice giving you a date to appear in court and further explain your reasons, and your case should be dismissed. If you don't inform the court on that date about the improper service both in your answer and at your hearing, you could be barred from bringing it up at a later point and getting the case dismissed.

      3. Don't destroy documents!

      Do not delete or otherwise destroy any blog posts, emails, documents, backups, or other documents--whether in paper or electronic form--that may be relevant to the lawsuit. Courts do not look kindly upon such actions and the destruction of important documents could be fatal to your case. Besides, you may find these documents useful in preparing your defense.

      4. Consider notifying your insurance company

      You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.

      5. Determine whether the court can hear your case

      You live in Atlanta, Georgia, the plaintiff lives in Sacramento, California, and the lawsuit has been filed in Dane County, Wisconsin. Does a court in Wisconsin have authority over you? A lot of ink has been spilled concerning a court's reach or jurisdiction to hear a case. Broadly speaking, our legal system divides the question into whether a court has personal jurisdiction, which is the authority over the plaintiff and defendant, and whether a court has subject matter jurisdiction, which is the authority to decide the issues presented in the lawsuit. Questions concerning jurisdiction can get very complicated and are beyond the scope of this guide. If you've been sued in another state or country, you may want to hire a lawyer to examine the jurisdictional issue.

      6. Gather your information

      Organization is key to the litigation process. You should keep a file containing all the documents related to the lawsuit including printouts of any relevant emails and webpages. Additionally, note dates and times for each document in the file.

      The complaint should outline the claims the plaintiff has brought against you. Typically the claims will be set forth in the titles of sections of the complaint, but sometimes they are buried. Familiarize yourself with the language used in the complaint and use the other sections of this guide, especially the sections on Risks Associated with Publication and Intellectual Property, to understand the reasons for the lawsuit.

      Next, write down everything you know about the situation, including: when you received the correspondence, the nature of the actions that triggered the lawsuit, and any relevant interactions you’ve had with the plaintiff. The act of writing the summary allows you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the lawsuit's validity.

      You should know that the plaintiff may request a copy of the summary, but the law will likely protect you from having to give it to her. However, as there are rare instances in which you may need to provide it, keep to the facts only and do not include your opinions about the situation.

      The complaint portrays the plaintiff's side of the story; the answer should portray yours. Go through the complaint and write out each fact alleged by the plaintiff. Now, rewrite the facts using your words. Do you dispute how the plaintiff has characterized certain events or omitted others?

      7. Decide how to respond

      At this point, you should decide whether you want to represent yourself or hire a lawyer. If you have in fact been sued, you will invariably be better off if you hire a lawyer. Refer to our section on Finding Legal Help for more help on this issue.

      • If you choose a lawyer, provide her with the file of all the documents related to your case, your summary, and your rewritten version of the facts. However, do not simply hand off your case and cease to work on it. Keep up with your own research about the legal process as you will still have important decisions to make—remember your lawyer works for you and that you should still be in control of how you want to proceed.
      • If you want to represent yourself, your next step should be to research and write your answer. While we cannot provide you with legal guidance on how to construct your answer, the following points may be helpful:

        • Visit your local court library and find forms or templates for help in constructing your answer.
        • Research how to present your arguments to the court in writing. You will likely have to use cases and statutes to support your positions.
        • Your rewritten facts should be helpful as a jumping off point.
        • Part of your answer will be to list of any defenses you believe apply to your case. A defense is a legal position that may limit your accountability, or even allow you to escape the lawsuit altogether--even if the facts of the plaintiff's complaint are true. An example of a substantive defense is the Fair Use doctrine in response to a claim of copyright infringement. An example of a procedural defense is that the court has no jurisdiction over you.
        • Be sure to keep to the style guidelines specific to the court where you will file your answer.

      8. Add the information about the lawsuit to the CMLP Legal Threats Database

      This is an important action because creating an entry in the Legal Threats Database will help others who receive similar lawsuits know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

       

      Jurisdiction: 

      Subject Area: 

      Responding to Subpoenas

      You've received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it's best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena's request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this section should be able to answer the preliminary questions you may have about how best to respond.

      1. What is a subpoena?

      A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer's office.

      Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

      • the judge presiding over the legal proceedings
      • the clerk of the court where the lawsuit has been filed
      • a private lawyer representing one of the parties in the lawsuit
      • a government lawyer such as the Attorney General or District Attorney
      (Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

      Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

      2. Did you receive a subpoena?

      You'll first want to determine precisely what you've received. In some instances, law enforcement authorities will use a search warrant, rather than a subpoena duces tecum, to access material in your possession. If you have been served with a search warrant, you cannot interfere with the search. You should call a lawyer immediately, note the scope of the search, watch and document where the authorities performed their search, and keep a record of any items seized.

      Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you've received. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

      • the full name of a court in the document's title, or letterhead
      • the word "Subpoena" in bold in the top third of the document
      • the words "you are commanded to report," or a similar variation
      • your name
      • a specific date, time and location for you to appear or for you to provide the requested materials
      • in some cases, the penalty for non-compliance will be included
      Examples of subpoenas:  Earthlink Subpoena, AutoAdmit Subpoena, Tice Subpoena, and IBM Subpoena.

      Subpoenas are not necessarily filed with the court, so if you have doubts about the document you've received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.) If none of the above characteristics match your document, refer to our sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you've received.

      3. Accepting a Subpoena vs. Complying with a Subpoena

      Once you've determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

      4. Inconvenient Date & Cost of Travel

      As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

      If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

      5. Filing an Objection to a Subpoena

      The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

      You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

      • Improper service
      The law requires that you receive (were "served") with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.
      • Scope of Request
      If you believe the subpoena you've received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

      It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn't even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

      • Confidential Material
      If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit. For example:
      • certain states have enacted "shield" laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources. Refer to our section on State Shield Laws to see whether your state has this law.
      • both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.
      • both state and federal law grant close relatives immunity from testifying in certain situations.
      Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.
      • Self-incrimination
      The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

      In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

      6. Hiring a Lawyer

      If you haven't already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you're comfortable with supplying the requested information, you may not need a lawyer's services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath. Refer to our section on Finding Legal Help for more help.

      Before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

      • record events you may later forget
      • evaluate your position and figure out your next steps
      • focus your conversation with a lawyer (should you wish to consult with one)
      • launch your own legal research
      • potentially determine the subpoena's validity

      7. Adding your subpoena to the CMLP Legal Threats Database

      This is an important action because creating an entry in the Legal Threats Database will help others who receive similar subpoenas know that they are not alone, and assist them in weighing their options regarding how to respond. You will also help the CMLP track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

      Jurisdiction: 

      Subject Area: 

      Newsgathering and Privacy

      This section of the legal guide highlights the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information. Many of the subjects discussed in this section are relevant whether or not you eventually publish the information you gather. (See the section on Risks Associated With Publication in this guide for information on your potential liability when publishing.)

      So, where to start?

      • If you need to physically venture to public or private places in order to gather information, you should review the section on Entering the Property of Others, which outlines your rights to access public and private property and provides some guidance on how to avoid legal liability for trespass.

      • If you anticipate that you will be acquiring private information about someone or will need to gather information in places where a person would reasonably expect privacy, you should review the section on Gathering Private Information, which outlines various privacy laws that may limit your ability to gather such information.

      • If you plan to use a recording device, whether it's a camera, video recorder, or microphone, you should review the section on Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording devices in specific private and quasi-public settings.

      • If you plan to rely on documents or other tangible property, you should review the section on Acquiring Documents and Other Property, which addresses the laws affecting your ability to gather documents and other property that belongs to others, including the government.

      • If you plan to report on or document political events and election activities, you should review the section on Documenting Public Proceedings and Events, which explains your rights to access and document what occurs at polling places on Election Day and at the 2009 Presidential Inauguration.

      • If you expect to deal with confidential sources or just want to understand your right to protect your newsgathering and source materials, you should review the section on Protecting Sources and Source Material, which addresses the legal challenges in maintaining the confidentiality of sources and source material and discusses the federal and state laws that may protect you from forced disclosure of your newsgathering materials.

      In addition to the sections listed above, you may want to review the Access to Government Information topic area in this guide. It covers the wide range of information available from federal, state, and local government sources.

      We've also created a short video addressing some of the newsgathering and privacy issues you are likely to face as you head out with camera in hand to cover the news:

       

      Entering the Property of Others

      This section provides an overview of the laws that govern your right to access different types of public and private property.

      While the First Amendment protects your right to engage in speech, it does not grant you unfettered access to the property of others. You should always keep in mind that your right of access is no greater than the public's right of access. In general:

      • You have a right to access property that is open to the general public.
      • Not all property owned by the government is accessible by the public.
      • You do not have the right to enter private property without the owner's permission.

      Even when you have a right to access property, however, you may be asked to leave by law enforcement or the owner of the property. In these situations, it is important that you understand your rights ahead of time. You should read the relevant local statutes, familiarize yourself with the common law, and perhaps contact the police and other government offices in the area to better understand your right to access different locations.

      Generally speaking, government officials and persons in possession of private property are the only figures who can restrict your access to property. If one of these figures asks you to leave a place that you believe you have a right to access, you should explain why you have the right to stay. They may tell that current circumstances are an exception, or you may be able to convince them to let you stay. In any case, you must take care—you can be charged with trespass for remaining if you do not have a right to remain there.

      Depending on the type of property you will be entering, you should review the section on:

      Access to Public Property

      The U.S. Constitution protects your right to speak and, in some instances, grants you a right to access public places to gather information. Your right to access public property is not absolute, however. Generally speaking, you have the same right of access to public property as the general public.

      This section covers your access to public (i.e. government-owned) property. (Refer to the section on Access to Private Property for more information on entering privately owned property.) Not all government-owned property is open to the general public. Depending on the type of property you wish to enter, your right to access public places may be constrained by reasonable time, place, or manner restrictions, or by the government's interest in managing its property.

      Here is an overview of the three types of public property you are most likely to encounter:

      Property That Historically Has Been Open to the Public

      Your right to access public property is strongest when the area you wish to access has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. You may freely enter and gather information while in these public spaces, but you should do so without disturbing the peace or interfering with those around you. Your right of access does not confer immunity from all liability if your conduct is disruptive or harassing.

      Property That Is Open to the Public for a Limited Purpose

      Your right to access government-owned property that is only partially open to the public is a bit more limited. If the general public is permitted to access only certain areas or for certain limited purposes, you right to access the property for newsgathering purposes is similarly limited. For example, some parts of a courthouse are open to the general public, but portions of the courtrooms themselves are accessible only by the parties in the litigation and judges' chambers are completely off limits to the public.

      However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non-school meetings that are open to the public, those rooms, during those times, will be treated as public forums.

      Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or you may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These "school loitering laws" are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.

      Property That Is Not Open To the Public

      You cannot access or gather information on government-owned property that is not open to the general public. This type of property is known as a nonpublic forum in which the government can charge you with trespass if you enter without authorization. The following are examples of nonpublic forums:

      • An airport terminal is a nonpublic forum. See International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992). The Supreme Court has noted that airports are "among those publicly owned facilities that could be closed to all except those who have legitimate business there." United States v. Grace, 461 U.S. 171, 178 (1983).

      • Government-owned civic centers, stadiums, or theaters used for private commercial purposes are not public forums. When the government leases a convention center, the private lessee may legally exclude individuals who want to report on newsworthy events. The event coordinators may even grant exclusive media coverage rights to a particular media outlet and deny access to others who want to cover the event (or at least deny them access in their capacities as journalists).

       

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      Access to Private Property

      You may wish to access another's private property in order to gatherinformation to publish online. However, while there are (rare)circumstances in which the law will condone your entry onto privateproperty without permission, in general you do not have any right to enter the private property of others without their consent. You should read this section in conjunction with the section on Trespass in order to understand the issue of consent.

      Types of Private Property

      Residences: The term "private property" encompasses awide variety of places, from homes to businesses open to the public.Courts are highly unsympathetic to those who try to gather news in private homes without consent, and if you enter a private home without permission, you may be liable for invasion of privacy, trespass and, in certain cases, intentional infliction of emotional distress.

      In the 1940s, the Supreme Court took on the issue of "companytowns" with regard to the First Amendment. Although the company townwas private property owned by the company, the fact that it had beenopened up to use by the public generally made it subject to theconstitutional requirements of the First Amendment. Marsh v. Alabama, 326 U.S. 501 (1946).

      Today, there are fewer company towns; however, private, gatedresidential communities may occupy a similar niche. Visitors seekingaccess to a private residential community must usually announcethemselves at the gate or receive permission from the development'ssecurity guards in order to enter. It's often a wise idea to seekpermission before entering such a community. But even if you do not get express permission, your right to access will be strongest if theprivate residential community opens its gates to the public at large.See the section on Access to Public Property in this guide for more information.

      Businesses: If you try to access businesses that do not open themselves up to the public, you may be liable for trespass.However, as a member of the public you will be able to accessbusinesses open to the public without fear of liability. Your right ofaccess does not necessarily translate into a right to gatherinformation while you are there. The business has given you consent touse the premises as a patron, and your actions need to be within thescope of that use.

      For example, a restaurant consents to your presence for you toenjoy eating a lovely meal in the company of good friends. In thisscenario, taking notes about the food, ambiance, and service may befine, whereas approaching other diners for interviews or forphotographs likely oversteps the scope of the restaurant's consent, andyou could be liable for trespass. See the Trespasssection in this guide for more information. Note that you may onlyaccess the areas of the business that are open to the public.Continuing our example, while you can enter a restaurant, you cannot goto the kitchen without additional permission.

      Shopping malls have come to occupy a place in moderncommunities akin to the town square or main street and thus arearguably public, rather than private, in nature. But unlike thetraditional public forum of a town square, these establishments areprivately owned places of business. Since the Supreme Court's decisionin PruneYard Shopping Center v. Robins,447 U.S. 74 (1980), stating that there is no constitutional right tofree speech in a private shopping mall, the law of access to shoppingmalls has largely been left to the states. State courts vary on thequestion of whether to allow access to shopping malls. Those that dofind them to be public or quasi-public forumsstill note that owners may impose reasonable time, place and mannerrestrictions on expression, provided the regulations arecontent-neutral, narrowly tailored, and leave open sufficientalternative channels of communication.

      If you want to go to a shopping mall and gather information,try to avoid disrupting business activities. For example, it would bebetter to approach people walking in the corridors of the mall, or inthe food court, than to station yourself at the door of a store andattempt to talk to everyone entering or exiting.

      Entering Private Property While Accompanying Government Officials

      You may be invited by law enforcement or other government officials to accompany them while they perform their duties. These types of situations are called "media ride-alongs" and can be an effective way to gather information about how public officials do their work.  However, ride-alongs may take you to events occurring on private property.  The Supreme Court has held that accompanying police in their execution of an arrest warrant in a private home may make you liable for trespass. See Wilson v. Layne, 526 U.S. 603 (1999).

      The Reporters Committee for Freedom of the Press has a terrific overview of how courts have treated trespass issues in media ride-alongs. The issue is complex. As a rule of thumb: if you are invited on a media ride-along and enter private property, you should get consent for your presence from the person in possession of the property.  Additionally, you should note that depending on the circumstances, your presence may jeopardize an investigation. Thus, do not be surprised if your local law enforcement authorities prohibit media ride-alongs altogether.

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      Trespass

      If you enter private property without the owner's permission or enter portions of public property that are off limits to the public, you could be liable for civil or criminal trespass. For example, you may not walk into your neighbor's house uninvited, sneak into your congressperson's office, or pretend to be a public official to gain access to someone else's property.

      In general, if you are invited onto someone's property or otherwise have permission to be on the property, you will not be considered a trespasser. If you are asked to leave, however, you may be trespassing if you refuse to do so.

      Seeking Consent to Enter Property

      You should make sure that you get consent before entering someone else's property. This consent must come from the individual, group of individuals, or business entity that is in possession of the property. In many cases this means that you need to get the owner's consent. However, if you want access to leased property, you must get the lessee's consent. Thus, a resident of an apartment complex can invite you into their apartment and you will not be considered a trespasser even if the landlord or owner objects to your presence. Conversely, if the owner gives you permission to access the resident's apartment and the resident declines to do the same, you may be liable for trespass if you enter the resident's property.

      In some cases you'll be able to get express consent (verbal or in writing) from the person in possession of the property. In other cases you may believe you have the person's implied consent for your ability to enter her property. This type of situation occurs when:

      • the person is not present, but your prior contact with the person leads you to believe that you can enter her property without express permission; or
      • you don't ask for permission, and the person keeps silent during your visit to her property.

      If you rely on implied consent, you may find it difficult to defend yourself if you are charged with trespassing. You will need to show that a reasonable person in the same situation would have believed that there was implied consent based upon the conduct of the person in possession of the property and the overall circumstance.

      Scope of Consent

      If you have a right to be present on private or public property you will not be trespassing if your use of the property is consistent with your right to be there. Make sure you understand the scope of the permission you've been given and stay within its boundaries.

      For example, you generally have a right to attend, and report on, court hearings, legislative sessions, and some governmental meetings. You can learn more about these rights in our section on Access to Government Information, Electronic Records, Meetings and Public Spaces. However, you have no right to enter a judge's chambers located in the courthouse, or private offices in the same building hosting the legislative sessions and other governmental meetings.

      Misrepresenting yourself in order to gain consent

      You may want to engage in investigative reporting tactics in order to inform the public about improper business practices or governmental wrongdoing, and thus may feel the need to misrepresent yourself in order to gain the necessary consent. If you do so, you may find yourself facing charges of trespass on the basis that your misrepresentation vitiated the consent given to you.

      For example, in Food Lion v. Capital Cities/A.B.C., two ABC journalists falsified their resumes, and became employees of Food Lion grocery stores. 194 F.3d 505 (4th Cir. 1999). The two journalists gained access to areas of the store that were off limits to the general public and used hidden cameras to record unsanitary meat handling practices. The appellate court upheld a jury verdict finding the journalists liable for trespass on the basis that the journalists had breached their duty of loyalty to their employer, Food Lion.

      In a second case involving ABC, however, a court did not hold ABC liable for trespass because it concluded that ABC's employees did not actually interfere with the owners possession or use of the property. Desnick v. American Broad. Cos., 44 F.3d 1345 (7th Cir. 1995).  In Desnick, two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. The employees used hidden cameras and recorded the eye examinations which were subsequently used for a news story about the care and advice received at Desnick's eye clinics. Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.

      Other issues may also come into play when you misrepresent yourself, such as laws against posing as a public official. Given the complexity of the caselaw, if you feel that you must conceal your identity in order to access property, you should get legal assistance to avoid claims of trespass (as well as other claims like fraud and invasion of privacy). Refer to the section on Finding Legal Help in this guide for more information.

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      Practical Tips for Avoiding Liability When Entering the Property of Others

      While you can't always eliminate your legal risks when entering the property of others, there are a number of ways you can minimize your risk of liability. Some suggestions include:

      • If you have any doubts about your right to enter property, get consent from the person in possession of the property before entering.

      • Make sure your use of the property is consistent with your right to be there. If you are invited onto someone's porch for an interview, do not assume that you can access other areas where you were not specifically invited.

      • Do not misrepresent yourself to gain access to public or private property. If you feel that it is necessary to assume another persona, get legal assistance to find out how best to proceed.

      • If you have sufficient advance notice, it may be helpful to get a press pass for the place you would like to access. Depending on the forum or event, the owner of the property, local police, or other government agency may have a procedure for obtaining these passes. Government agencies sometimes require proof that a requester is a professional journalist, but in some cases you may be able to qualify if you publish a blog or website or by simply asserting that there is a public interest in publishing information from the forum or event. Once you obtain a press pass, display it clearly. See the First Amendment Center's discussion on press credentials for more information (click on link and scroll to the section titled "Press credentials").

      • If you arrange an interview with a resident in a private residential community, have the resident provide your name to security ahead of time. If you want to gather additional information while on the premises of the community, stay within the more traditionally public areas, such as parks and sidewalks, rather than approaching people on their lawns or in their homes.

      • If you enter a business open to the public, do not disturb the peace or harass people in order to get information.

      • It's generally a good idea to refrain from interfering with your subjects or disturbing the peace. Even if you're on public property, you may face charges of harassment, assault, and the like.

      • If you want to enter public school grounds, let the school know ahead of time that you would like to visit the campus and interview students.

      • Don't loiter around a schoolyard. Get permission from school officials to be on the premises; most schools will not allow strangers to wander around without credentials.

      • If you are covering a breaking event, cooperate with authorities, police, and emergency personnel to be sure that you are not interfering with rescue or other emergency efforts.

       

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      Gathering Private Information

      If you physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other other way intrude into a person's privacy (by, for example, opening the person's mail), you could be liable for a violation of what is called "intrusion upon seclusion." If you collect certain personal data, this can also intrude into a person's private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion if the method you use meets the four general elements for an intrusion claim.

      Generally speaking, however, you will not be liable for intrusion if you photograph or capture video of people in public places, even if they have not consented to being recorded, because individuals cannot have a reasonable expectation of privacy when in public. Nor will you be liable for intrusion if you gather private information from documents that are available to the general public.

      If you plan to gather private information or take photographs or video of people engaged in private activities in places where they could reasonably expect to be private, you should:

      You should know that it is not necessary that you publish the photographs or information you gathered; an intrusion claim rests solely on the way in which you gathered your information. If you do subsequently publish the private information you gathered, however, you could also face liability for what is called "publication of private facts." See the section on Risks Associated with Publication in this guide for more information on the risks you may face if you publish private information.

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      Elements of an Intrusion Claim

      An intrusion on seclusion claim is a special form of invasion of privacy. It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another. In most states, to make out an intrusion on seclusion claim, a plaintiff must generally establish 4 elements:

      • First, that the defendant, without authorization, must have intentionally invaded the private affairs of the plaintiff;

      • Second, the invasion must be offensive to a reasonable person;

      • Third, the matter that the defendant intruded upon must involve a private matter; and

      • Finally, the intrusion must have caused mental anguish or suffering to the plaintiff. See Restatement (Second) of Torts - Intrusion Upon Seclusion.

      With respect to the first element of an intrusion claim -- intentional invasion into the private affairs of another -- courts generally require that the intrusion take the form of a "physical trespass." This can be met literally, by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a "physical trespass" if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording.

      The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive.

      The third element requires that the intrusion involve a private matter. Generally speaking, if you've intruded into someone's seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met.

      The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established.

      Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian.

      Each state has its own definition of what constitutes intrusion upon seclusion. You should consult the state sections listed below to determine whether your specific state recognizes intrusion on seclusion and, if so, how it defines what is necessary for a claim. (Note that the guide does not include every state at this time.)

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      Arizona Intrusion Law

      Arizona recognizes the tort of intrusion upon seclusion as one of four invasion of privacy torts. Valencia v. Duval Corp., 132 Ariz. 348, 350 (1982), overruled on other grounds in Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335 (1989). For a basic overview of the tort of intrusion upon seclusion, see the Elements of an Intrusion Claim page.

      Arizona generally follows the Restatement (Second) of Torts for invasion of privacy torts, see Godbehere, 162 Ariz. at 342. The Court of Appeals of Arizona has relied upon the Restatement (Second) of Torts' formulation of intrusion upon seclusion, Hart v. Seven Resorts, 190 Ariz. 272, 279 (1997), as has the 9th Circuit Court of Appeals when interpreting Arizona law, Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 812 (9th Cir. 2002).

      Arizona used to require that a plaintiff prove the elements of intentional infliction of emotional distress, including extreme and outrageous conduct on the part of the defendant, in order to prove intrusion upon seclusion and other invasion of privacy torts. See Valencia, 132 Ariz. at 350; Davis v. First Nat'l Bank of Ariz., 124 Ariz. 458, 463 (1979); Cluff v. Farmers Insurance Exchange, 10 Ariz. App. 560, 564 (1969). However, the Supreme Court of Arizona has since overruled these decisions, and proof of extreme and outrageous conduct is no longer required to sustain a claim for invasion of privacy, including intrusion upon seclusion. Godbehere, 162 Ariz. at 340.

      Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Arizona is 2 years. A.R.S. § 12-542; Hansen v. Stoll, 130 Ariz. 454, 460 (Ariz. Ct. App. 1981).

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      California Intrusion Law

      Intrusion law in California does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. California courts have adopted the elements of a claim for intrusion outlined in the Restatement (Second) of Torts. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (1986).

      California courts have recognized a more expansive definition of intrusion, however, that includes situations involving the use of deception to obtain private information. For example, a court allowed an intrusion claim where the defendant misrepresented his relationship with the plaintiff to obtain private information from her foster mother. See Taus v. Loftus, 40 Cal.4th 683, 725 (2007) (available at the Supreme Court's website after entering the citation information).

      California courts also recognize some additional limitations on your liability for intrusion. With respect to the first element of a claim -- intentional invasion into the private affairs of another -- California courts have upheld your right to photograph a public figure even if he or she is on private property so long as the subject is in full public view. Being in full public view eliminates any reasonable expectation of privacy that the subject may have.

      In California, the plaintiff must prove that you intended to intrude on the seclusion of another. Marich v. MGM/UA Telecommunications, Inc., 113 Cal. App. 4th 415 (2003)(holding that you must desire, or intent, to cause the consequences of your actions or believe that the consequences are substantially likely to follow). In other words, if you were merely scanning the horizon with your binoculars and inadvertently saw into someone's bedroom, this mistaken intrusion into an area of seclusion of another will not likely give rise to liability.

      Other Potential Bases for Liability

      If you are photographing or recording someone in California, you should be aware that California also has an Anti-Paparazzi Statute: California Civil Code, §1708.8. The statute prohibits you from trespassing onto another person's land or property with the express intention of procuring any kind of visual image, including but not limited to photographs, visual images, sound recordings or other images of a person engaging in a personal or familial activity.

      Under this statute, you can also be found liable for invasion of privacy for photographing or video taping a person in a manner that a reasonable person would find offensive regardless of whether you have physically approached the subject. This would include using high power lenses or ultra-sensitive microphones to gain access to a place where a person has a reasonable expectation of privacy. These would all be cases where, without actual physical trespass, you would not have been able to capture the image of the person without the use of special equipment.

      You should be especially cautious about entering the private property of another when covering the actions of police or government officials (these are often called "ride-alongs"). Even with police or other government permission, you will likely still be liable for intrusion if you enter a private home without the consent of the homeowner herself. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1487-88 (1986).

      Practical Tips for Avoiding Liability When Gathering Private Information

      While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In California, you should also consider:

      • That California recognizes "mistake of fact" as an affirmative defense to an intrusion claim. This means that if you made a genuine and reasonable reliance on a fact, later proven to be false, this may bar an intrusion claim against you. For example, if you mistakenly believed you have the permission of the subject you are photographing -- and your belief was reasonable -- you will not be liable for intrusion.

      • You will not likely be held liable for intrusion if your actions are unintentional. You should be aware, however, that the majority of acts that give rise to an intrusion claim, such as taking pictures, video taping, recording, etc. are usually acts that you intend and the burden will be on you to prove otherwise.

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      District of Columbia Intrusion Law

      Intrusion law in the District of Columbia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information. District of Columbia courts have only focused on the first three elements of the claim as there have yet to be any cases that deal specifically with anguish or suffering.

      If you gather news or information in Washington, DC, you should be aware that gathering data from FBI files may be held to a different standard than gathering information from other publicly available sources. For example, a court held that gathering information from FBI files could constitute a claim for intrusion because information contained in FBI files, although sometimes available through public records, are not as easily accessible. Alexander v. FBI, 971 F. Supp. 603 (D.D.C. 1997). The court also reasoned that this type of information is highly personal and private and its disclosure could be considered offensive to a person of ordinary sensibilities.

       

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      Florida Intrusion Law

      Intrusion law in Florida does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Wolfson v. Lewis, 924 F. Supp. 1413, 1419 (E.D. Pa. 1996) (interpreting Florida law), which highlights Florida's recognition of intrusion and shows its adoption of the elements of a claim described in the Restatement (Second) of Torts. As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      Other Potential Bases for Liability

      Florida also has a stalking statute (Florida Statute 784.048) that prohibits engaging in a pattern of conduct directed at a specific person that causes substantial emotional distress to that person. If you violate this statute, you could be held liable for stalking and your actions could be viewed as an intrusion.

      Practical Tips for Avoiding Liability When Gathering Private Information

      While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Florida, you should also consider:

      • Even if your conduct does not match the four elements needed to meet the general intrusion claim, be sure that your conduct does not amount to stalking of another person, as that will lead to liability as well.

      • Florida extends the defense of consent to cases that involve 'media ride-alongs', as discussed in the Trespass Section of this guide. In Florida Publ'g Co. v. Fletcher, 340 So. 2d 914, 918 (Fla. 1976), the court held there was implied consent when media members accepted an invitation by an officer investigating a fire to enter private property, and therefore no intrusion claim existed.

       

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      Georgia Intrusion Law

      Intrusion law in Georgia does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cabaniss v. Hipsley, 151 S.E.2d 496, 499-500 (Ga. App. 1966). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      With respect to the first element of a claim -- invasion into the private affairs of another -- Georgia requires that the intrusive conduct must be intentional. See Anderson v. City of Columbus, 374 F. Supp. 2d 1240, 1246 (M.D. Ga. 2005). However, a Georgia court has also held that physical intrusion is not always required, finding liability where the defendant repeatedly followed the plaintiff. See Anderson v. Mergenhagen, 642 S.E.2d 105, 110 (Ga. App. 2007).

      Other Potential Bases for Liability

      If you are photographing or recording someone in Georgia, you should be aware that Georgia has a statute that makes it unlawful for any person, through the use of any device, without the consent of all persons being observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view. This statute just highlights that in addition to your physical trespass, the use of any device to intrude, whether it be a camera, microphone or video, can impose liability in Georgia. See O.C.G.A Section 16-11-62(2).

      The Georgia statute specifically states that liability for intrusion does not require that photographs be developed or shown to others to complete the invasion of privacy. The statute is only concerned with the intrusive activity engaged in to obtain the photograph. See O.C.G.A Section 16-11-62(2).

       

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      Illinois Intrusion Law

      Intrusion law in Illinois does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Burns v. Masterbrand Cabinets, Inc., 874 N.E.2d 72, 75-77 (Ill. Ct. App. 2007). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      Illinois courts do, however, differ slightly in describing the second element of a claim, requiring that the intrusion must be "offensive or objectionable." It does not appear that this change materially affects the outcome of cases.

      The Seventh Circuit Court of Appeals, which covers federal courts in Illinois, has hinted that there may be a First Amendment privilege to intrude with respect to matters of public concern. See Desnick v. American Broadcasting Co., 44 F.3d 1345 (7th Cir. 1995). Using this logic, a federal district court judge stated that if the media could show that their intrusive activities were necessary to expose improper prison conditions, a highly newsworthy and publicly concerned topic, that could be a possible defense to intrusion. See Huskey v. NBC, 632 F.Supp. 1282, 1291 (N.D. Ill. 1986).

       

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      Indiana Intrusion Law

      Intrusion law in Indiana does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

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      Massachusetts Intrusion Law

      Massachusetts courts have not formerly adopted a common law claim for intrusion. Instead, Massachusetts has a statute that defines intrusion as an "unreasonable, substantial or serious interference with privacy." M.G.L. c. 214, Section 1B. Although the courts in Massachusetts formerly use the Massachusetts statute as their guide for intrusion claims, they do look to the general rule outlined in the Restatement to evaluate an intrusion claim. See Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912, 915 (1991).  As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      In addition to gaining explicit consent from the person you wish to photograph or record, Massachusetts courts have extended this consent to other individuals under certain circumstances.  For example, in Bevis v. United States, 971 F.2d 744 (unreported), a hospital employee escorted a photographer though the facility and gave permission for the photographer to take pictures. Although patients did not specifically give consent to the photographer, the court held that a claim for intrusion could not succeed because the consent from the hospital extended to its patients.

       

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      Michigan Intrusion Law

      Intrusion law in Michigan does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See DeMay v. Roberts, 9 N.W. 146 (Mich. 1881) (recognizing the intrusion tort); Duran v. Detroit News, 504 N.W.2d 715 (Mich. Ct. App. 1993) (applying intrusion to the media and laying out the elements). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      The only major difference that distinguishes Michigan's application of intrusion from the general elements applied by other states is that Michigan requires the method of intrusion to be "objectionable", rather than offensive. It is unclear if this makes a practical difference, but it is possible that a court could find conduct to be objectionable, but not necessarily offensive.

      In addition, Michigan has clarified that a defendant will not be liable for intrusion if he or she has a legitimate interest in the subject matter. See Saldana v. Kelsey-Hayes, 443 N.W.2d 382, 384 (Mich. Ct. App. 1989). This added defense deals with the second element of the claim that requires that the matter be private. Although there are no reported cases as of yet specifically geared to the media, this defense shows that a plaintiff's privacy is not absolute and can be subject to the legitimate interest of others.

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      New Jersey Intrusion Law

      Intrusion law in New Jersey does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 17 (N.J. 1992). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      Corporations, partnerships, and unincorporated associations have no right of privacy under New Jersey law and therefore cannot assert a claim for intrusion upon seclusion.

      Other Potential Bases for Liability

      If you are photographing or recording someone in New Jersey, you should be aware that New Jersey imposes criminal (N.J.S.A 2C:14-9) and civil (N.J.S.A. 2A:58D-1) liability for photographing or filming or disclosing any filming or photography of "another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed."

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      New York Intrusion Law

      New York courts do not recognize intrusion upon seclusion claims. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993).

      Courts in New York do, however, recognize causes of action for trespass and other illegal acts committed during the course of newsgathering. See the section on Entering the Property of Others for more information about trespass and the other risks you may encounter.

       

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      North Carolina Intrusion Law

      Intrusion law in North Carolina does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Miller v. Brooks, 472 S.E.2d 350, 353-55 (N.C. Ct. App. 1996). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      Always attempt to get the consent of any parties you are filming or whose privacy you might otherwise be intruding into. Consent from the subject will likely give you a strong defense against an intrusion claim. See Miller v. Brooks, 472 S.E.2d 350, 354-55 (N.C. Ct. App. 1996).

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      Ohio Intrusion Law

      Intrusion law in Ohio does not differ in any significant way from the law described in the General Elements of an Intrusion Claim section of this guide. See Sustin v. Fee, 431 N.E.2d 992, 993-94 (Ohio 1982). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      In addition, Ohio has gone further with the first element in stating that the intrusive conduct must be intentional. Negligent intrusion is not sufficient. See Filotei v. Booth Broad. Co., 1981 Ohio App. LEXIS 10461 at *6. At least one Ohio court has also noted that intrusion includes the making of persistent and unwanted telephone calls. See Clark v. Clark, 2005-Ohio-5252 (Ohio Ct. App. 2005).

      Practical Tips for Avoiding Liability When Gathering Private Information

      While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Ohio, you should also consider:

      • At least one court has held that newsworthy reporting is immune from an intrusion claim. See McLin v. Dayton Newspapers, 17 Media L. Rep. 1077 (Ohio Mun. Ct. 1989)

      • While consent is generally a defense against an intrusion claim, an Ohio court has held that a contract in which a plaintiff waived all privacy claims against the defendant, to whom he owed a debt, was not enforceable because it was against public policy to waive all such claims. See King v. Cashland, 2000 Ohio App. LEXIS 3943.

      • Be cautious in a "ride-along" situation. A Federal District Court found that media defendants could be liable for trespass for entering a home even though they had the consent of the police officers they were accompanying. See Bartlett v. Outlet Broadcasting, 22 F.Supp.2d 726 (S.D. Ohio 1997).

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      Pennsylvania Intrusion Law

      Intrusion law in Pennsylvania does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Harris v. Easton Pub. Co., 483 A.2d 1377 (Pa. Super. Ct. 1984). As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

      However, persistent "hounding, harassment and unreasonable surveillance" may constitute intrusion in certain circumstances, even if conducted in a public or semi-public place. See Wolfson v. Lewis, 924 F.Supp. 1413 (E.D. Pa. 1996).

      Other Potential Bases for Liability

      You should also be aware that Pennsylvania also has criminal anti-harassment law, see 18 PA C.S.A. 2709, and an anti-stalking law, see 18 PA C.S.A. 2709.1. Under these laws, following a person under circumstances demonstrating an intent to cause substantial emotional distress could result in criminal liability.

      Practical Tips for Avoiding Liability When Gathering Private Information

      While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion lawsuit. See the section on Practical Tips for Avoiding Liability When Gathering Private Information for general advice on minimizing your risks. In Pennsylvania, you should also consider:

      • Whether your reporting is in the public interest. In at least one case, in determining whether a matter was private a Pennsylvania court noted that "[w]here the information that is reported pertains to the public interest as well as a party's private interest, there is a balance to be drawn between that individual's right of privacy and dissemination of information pertaining to the public interest." Pierog v. The Morning Call, Inc., 24 Media L. Rep. 1218 (C.P. Lehigh 1995). If your newsgathering is in the public interest, it will make it more difficult for the plaintiff to prove that your conduct was highly offensive to a reasonable person.

      • Be wary of "ride-alongs." While no case in Pennsylvania has directly addressed liability for media invited to accompany police or other government officials, a federal district court refused to dismiss a claim against officers who brought reporters with them while conducting a search of a home. See Hagler v. Philadelphia Newspapers, Inc., 24 Media L. Rep. 2332 (E.D.Pa. 1996).

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      Virginia Intrusion Law

      Virginia does not recognize intrusion claims. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (2002). However, there are several related causes of action that exist in Virginia.

      First, it is a crime in Virginia to knowingly and intentionally videotape, photograph, or film any nonconsenting person if that person is nude or in state of undress so as to expose the genitals, pubic area, buttocks, or female breast in a location where the person would have a reasonable expectation of privacy. See Va. Code. Ann. 18.2-386.1

      Second, Virginia has an anti-stalking statute, which makes it a crime to "on more than one occasion engage in conduct directed at another person with the intent to place, or when [you know] or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member." Va. Code. Ann. 18.2-60.3.

       

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      Washington Intrusion Law

      Intrusion law in Washington does not differ signicantly from the law described in the General Elements of an Intrusion Claim section of this guide. See Doe v. Gonzaga University, 143 Wn.2d 687, 705-06 (2001).

      As result, you should follow the general advice outlined in the section on Practical Tips for Avoiding Liability When Gathering Private Information.

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      Statute of Limitations for Intrusion

      "Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Generally speaking, the limitations period for intrusion claims begins to run on the date when the intrusion occurred.

      Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.

      Because each state has its own statute of limitations for intrusion claims, which vary between one and four years, you should refer to the state sections listed below to find out what the specific statute of limitations is in your state. (Note that the guide does not include every state at this time.)

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      California Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in California is 2 years. Cal. Civ. Proc. Code Section 335.1.

      California courts at one time applied a one-year limitations period for injury to persons, but in 2002, California updated its statute of limitations and increased the time period allowed for injury to persons to two years. Therefore, a 2 year statute of limitations will apply for invasion of privacy lawsuits, such as intrusion.

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      D.C. Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Washington D.C is 1 year. See Doe v. Southeastern Univ., 732 F. Supp. 7 (D.D.C. 1990).

       

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      Florida Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion cases in Florida is 4 years. See Fla. Stat. 95.11 (3)(g) & 95.11(3)(o).

       

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      Georgia Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Georgia is 2 years. See Ga. Code Ann. § 9-3-33.

       

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      Illinois Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Illinois is 1 year. See 735 ILCS 5/13-201. Intrusion claims are governed by the same limitation period that is used for libel, slander and defamation actions.

       

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      Indiana Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Indiana is 2 years. Although there is no specific statute on point, Indiana uses the same limitations period for intrusion as it does for actions for injuries to persons. See Ind. Code 34-11-2-4.

       

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      Massachusetts Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion cases in Massachusetts is 3 years. Because there is no specific statute on point, Massachusetts uses the same limitations period for intrusion as it does for libel, slander and defamation suits, which is 3 years. See M.G.L. c. 260 Sec. 2A.

       

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      Michigan Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion cases in Michigan is most likely 3 years. There is no specific statute governing the limitation period for a right to privacy suit. It is likely that courts would not apply the 1 year statute of limitations for libel. See Mich. Comp. Laws 600.5805(9). Rather, a court would likely apply the general 3 year statute of limitations for injury to person or property when reviewing an intrusion claim. See Mich. Comp. Laws 600.5805(10).

       

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      New Jersey Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in New Jersey is 2 years. See N.J. Stat. Ann. 2A:14-2.

       

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      New York Statute of Limitations for Intrusion Claims

      The state of New York does not recognize intrusion upon seclusion claims, so no statute of limitations is relevant. See Howell v. New York Post Co., 612 N.E.2d 699, 703 (N.Y. 1993).

       

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      North Carolina Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in North Carolina is either 1 or 3 years. Because there is no specific statute on point, North Carolina courts would either use the same limitations period for intrusion as they do for libel, slander and defamation suits (1 year), see N.C. Gen. Stat. 1-54(3), or the general (3 year) catch-all statute of limitations for claims that are not specified elsewhere, see N.C. Gen. Stat. 1-52(5).

       

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      Ohio Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Ohio is 4 years. See Ohio Rev. Code 2305.09 (D).

       

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      Pennsylvania Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Pennsylvania is 1 year. See 42 PA C.S.A 5523(1).

       

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      Texas Statute of Limitations for Intrusion Claims

      The statute of limitations for intrusion claims in Texas is 2 years. See Texas Civil Practice & Remedies Code 16.003.

       

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      Virginia Statute of Limitations for Intrusion Claims

      Courts in Virginia do not recognize intrusion claims, see WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (2002), therefore the statute of limitations is inapplicable.

       

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      Washington Statute of Limitations for Intrusion Claims

      It is not clear what the statute of limitations is for intrusion in Washington because courts in Washington only recently recognized intrusion claims. For defamation and false light invasion of privacy cases, the statute of limitations is 2 years. See RCW 4.16.100(1). At least one source indicates that courts will likely apply this 2 year statute of limitations to intrusion claims as well. See Media Law Resource Center, 50-State Survey 2007-2008: Media Privacy and Related Law (2008). If this is not the case, the statute of limitations is likely the 3 year period applied to other torts. See RCW 4.16.080.

       

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      Practical Tips for Avoiding Liability When Gathering Private Information

      While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion or other newsgathering related lawsuit. Some suggestions include:

      • Make sure you gather information from public places and public sources: Photographing, taking video, or reporting on people where they should reasonably expect to be seen will not typically violate their privacy. Examples include photographing a person on the steps of a courthouse, at a public rally, at a sporting event, or at another public venue. By exposing themselves to public observation, people are not entitled to the same degree of privacy that they would enjoy within the confines of their own homes. The right to record the activities of others will typically extend to activities that take place on private property if they can be observed or heard from public places. Courts have held that there is no right to privacy attached to activities in the public view.

      • Be cautious when using telephoto lenses and special equipment if that equipment allows you to penetrate into private areas: You may be liable for intrusion if you use advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that you could not have gotten otherwise. If you plan to use such equipment, you should carefully consult the section on Elements of an Intrusion Claim in this legal guide and proceed with caution.

      • If you are gathering documentary information, you should rely on publicly available information as much as possible: Gathering information from documents that are available to the general public, such as property records or public financial information, will make it unlikely that someone can claim you violated their privacy when you collected the information. Similarly, if a person makes certain private facts about themselves public by announcing it or disclosing the information to others, gathering this information will not make you liable for intrusion.

      • Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to intrusion. Consent can often be gained expressly, by someone specifically telling you that you can photograph them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment.

      • Avoid the use of concealed cameras or microphones: Even if your subject consents or you are invited into their home, you could still be liable for intrusion if you use a concealed camera or recording device. Courts have sometimes held that the person's consent only extends to the face-to-face interview and not to any concealed recording. For more on this subject, please refer to the Recording Conversations, Phone Calls, Meetings and Hearings section of this legal guide.

      • Remember that intrusion is based on the act of newsgathering, it is not necessary for you to publish what you gather to be liable: If you do subsequently publish the private information you gathered, you could also face a claim for publication of private facts. See the section on Risks Associated with Publication in this guide for more information.

      • Other helpful resources: There are a number of other online resources you can consult that will help you avoid liability. The RCFP's Nine Keys to Avoiding Invasion of Privacy Suits is a good place to start as is the Radio-Television News Directors Association's page on When Reporting Goes to Far.

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      Recording Phone Calls, Conversations, Meetings and Hearings

      Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

      Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.

      If you plan to record the conversations of others, whether they occur in person or over the telephone, you should review the section on Recording Phone Calls and Conversations. This section discusses federal and state wiretapping statutes that make it a crime to record telephone calls and private conversations in many circumstances. Keep in mind that conduct that could lead to criminal and civil liability under federal and state wiretapping statutes could also lead to possible liability for intrusion. Please refer to the state-specific sections of this guide to get a more in-depth overview of the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia.

      If you plan to record the activities of the police or other public officials, First Amendment considerations might override state laws that prohibit recording without consent. See the section on Recording Police Officers and Public Officials for more information.

      If you plan to use a recording device at a public meeting or court hearing, you should review the section on Recording Public Meetings and Court Hearings, which looks at the laws affecting your ability to make sound and video recordings and to take photographs in these quasi-public settings. Because laws vary greatly state-by-state, be sure to consult the state-specific sections of this guide for detailed information on the laws regarding use of recording devices at court hearings and public meetings. For more information on your general right to be present at court hearings and public meetings, please see the Access to Government Information section of this guide.

      If you plan to take photographs, video, or audio of people engaged in private activities in places where they reasonably expect to be private, you should also read the section on Gathering Private Information in this guide. Various privacy laws could subject you to liability in this context, so you should proceed with caution if you will be recording private activities.

      Once you've reviewed the other sections and are prepared to proceed, you should carefully review the section on Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings. This section provides some practical guidelines for using recording devices, which should help you steer clear of legal trouble.

      Browse any of the sections below to get started:

      Jurisdiction: 

      Subject Area: 

      Recording Phone Calls and Conversations

      If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.

      From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. Other states require that all parties to the communication consent.

      Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, if you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone's consent. For details on the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section. In any event, it never hurts to play it safe and get the consent of all parties to a phone call or conversation that you intend to record.

      Who must give permission to record a telephone or in-person conversation?

      Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.

      In addition to federal law, thirty-eight states and the District of Columbia have adopted "one-party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents. See the State Law: Recording section of this legal guide for information on state wiretapping laws.

      When must you get permission from everyone involved before recording?

      Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. (Notes: (1) Illinois' two-party consent statute was held unconstitutional in 2014; (2) Hawai'i is in general a one-party state, but requires two-party consent if the recording device is installed in a private place; (3) Massachusetts bans "secret" recordings rather than requiring explicit consent from all parties.). Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people.  In some of these states, it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent. See the State Law: Recording section of this legal guide for information on specific states' wiretapping laws.

      Can you record a phone call or conversation when you do not have consent from one of the parties?

      Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented.

      Federal law and most state statutes also make disclosing the contents of an illegally intercepted telephone call illegal. See the section on Risks Associated with Publication in this guide for more information.

      What if you are recording the activities of the police or other government officials in public?

      Special considerations apply when recording police officers or other public officials.  You may have a constitutional right to openly record the activities of police and other officials in public, so long as you do not interfere with those activities or violate generally applicable laws.  For more information, see the section on Recording Police Officers and Public Officials.

      Jurisdiction: 

      Subject Area: 

      Recording Police Officers and Public Officials

      As discussed in other areas of this Guide, a patchwork of state laws applies to recording the communications of others, including wiretapping and eavesdropping laws. These laws may impose liability for recording audio of a conversation without the consent of one or more parties, or for making secret audio recordings.

      However, First Amendment considerations arise when you are openly recording the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.

      Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:

      • First Circuit (with jurisdiction over  Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) ("[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall "because [the citizen's] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]").
      • Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) ("The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.").
      • Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco,  _ Fed. App'x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
      • Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) ("The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.").

      The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), relying heavily on the First Circuit's reasoning in the Glik case.

      If you are recording in New Jersey  or in one of the states or territories within the First, Seventh, Ninth or Eleventh Circuits, the First Amendment right to record should protect you against prosecution for recording the police or other public officials as they carry out their duties in public places.

      Even if you are not within these jurisdictions, these decisions may be persuasive to other courts. Although two other U.S. Courts of Appeals have declined to hold that a First Amendment right to record was "clearly established" as of particular dates in the past, see Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. App'x 852, 852 (4th Cir. 2009) (per curiam), none so far have rejected the existence of such a right.  Furthermore, the United States Department of Justice has openly stated its position that the First Amendment protects all U.S. citizens who record the activities of the police in public, and has intervened in at least one civil rights lawsuit against police officers to support that First Amendment right. See Sharp v. Baltimore City Police Dep't, No. 1:11-cv-02888-BEL (D. Md. Statement of Interest filed January 10, 2012).

      NOTE: The First Amendment right to record does NOT give you the right to interfere in the performance of officials' duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights.

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      Recording Public Meetings and Court Hearings

      Public Meetings

      Generally speaking, when you attend a public meeting of a government body that is required to be open to the public by law, you are free to record that meeting through note-taking, sound and video recording devices, and photography, so long as the method of recording used is reasonable and not disruptive. Your ability to do so, however, is based largely on state open meetings laws, and the details of these laws vary significantly. At least one court has held that there is no federal constitutional right to make a video recording of an open meeting, at least not when other methods are available for compiling a record of the proceeding, such as written and stenographic notes or audiotaping. Whiteland Woods, LLP v. Township of W. Whiteland, 193 F.3d 177 (3rd Cir. 1999). Government bodies may therefore place reasonable restrictions on the use recording devices, including a ban on certain devices, in order to preserve the orderly conduct of its meetings.

      For information on your right of access to the meetings of government bodies, please consult the Access to Government Information section of the guide and the Open Government Guide prepared by the Reporters Committee for Freedom of the Press.

      Even when no state open meetings law affirmatively gives you the right to record, many state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. If you are attending a meeting that is open to the public, it is likely that the people running a meeting or giving a speech should reasonably assume that they might be recorded. However, you should always take reasonable steps to make clear that you are recording. Concealing your camera or recording equipment is not a good idea.

      For state-specific information about using recording equipment in public meetings, see the State Law: Recording section.

      Court Hearings

      The law regarding the use of audio and video recording devices in court hearings varies a great deal based on the state. In Chandler v. Florida, 449 U.S. 560 (1981), the U.S. Supreme Court held that the federal Constitution does not prohibit states from allowing cameras in the courtroom and that states may adopt their own rules permitting such recording equipment. Note that this ruling does not require states to allow recording in the courtroom, it only says that states may choose to do so. Since this ruling, all fifty states have adopted rules on the topic, but the rules vary widely. In some states, cameras and recording equipment are permitted in trial and appellate court proceedings, while in others recording is only allowed in appellate court proceedings. Most states give the court discretion to impose reasonable restrictions on the use of cameras and recording equipment in order to maintain the integrity of its proceedings and to otherwise serve the interests of justice.

      For state-specific information about recording in courtrooms, see the State Law: Recording section.

      The federal appellate courts may adopt their own rules regarding cameras and recording equipment in the courtroom. At the time of writing, only the Second Circuit and the Ninth Circuit Courts of Appeals allow recording equipment.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Jurisdiction: 

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      Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings

      Using a recording device, such as a microphone, video recorder, or camera, is a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet. A number of laws affect your ability to use a recording device in these contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, meetings, and hearings.

      Practical Tips for Recording Phone Calls and Conversations

      • Check the law of your state before you record a phone call or conversation. Recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. When you do your research, pay attention to your state's consent requirement -- i.e., whether one party's consent is sufficient to make recording lawful, or whether you need to get all parties' consent. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see the Reporters Committee for Freedom of the Press' Can We Tape?

      • Get consent to record from all necessary parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to review the law in all states where parties to the call are located.  If any party is in a state that requires the consent of all parties, it is best to get the consent of all parties to the call (regardless of their state) before recording. Even when all parties to a conversation are in a state which only requires the consent of one party, it cannot hurt (and it may help) to get consent from everyone.

      • Get consent on tape. The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording.

      • Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

      Practical Tips for Recording Public Meetings and Court Hearings

      • Check the law of your state before you show up. State law varies greatly, especially when it comes to recording in the courtroom. Looking into the law ahead of time can help you understand what's possible and alert you to requirements you need to meet ahead of time. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see the Reporters Committee for Freedom of the Press' Open Government Guide (for public meetings) and the Radio-Television News Directors Association's Cameras in the Court: A State-By-State Guide (for court hearings).

      • Notify the clerk of the court or the governmental body holding the meeting well ahead of time that you plan to record. Many state laws require that you request permission in advance in order to record in a courtroom. This requirement is less common with respect to public meetings, but it may still be useful to advise the governmental body in question that you plan to record. In both cases, you get the opportunity to ask questions and find out more about any restrictions that may apply.

      • Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place like a meeting or courtroom. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

      Jurisdiction: 

      Subject Area: 

      State Law: Recording

      Each state has its own wiretapping statute and its own rule on how many parties need to consent to the recording of a phone call or conversation in order to make it lawful. State law also varies on whether or not (and under what circumstances) you are permitted to use recording devices in public meetings and court hearings. Choose your state from the list below for state-specific information on recording laws.

       

      Subject Area: 

      Arizona Recording Law

      Note: This page covers information specific to Arizona. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Arizona Wiretapping Law

      Arizona's wiretapping law is a "one-party consent" law. Arizona makes it a crime to intercept a "wire or electronic communication" or a "conversation or discussion" unless you are a party to the communication, present during the conversation or discussion, or one party to the communication or conversation consents. A.R.S. § 13-3005, -3012(9). Therefore, if you operate in Arizona, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should abide by the recording law of the most restrictive state involved, or play it safe and get the consent of all parties.

      The wiretapping law covers oral communications when the speakers have "an expectation that the communication is not subject to interception under circumstances justifying the expectation," A.R.S. § 13-3001, but absent the speakers' justified expectation, the law does not apply. See State v. Hauss, 142 Ariz. 159, 164 (Ariz. Ct. App. 1984). Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or restaurant, without consent. However, you should seek the consent of one or all of the parties before recording any conversation that an ordinary person would deem private.

      Violation of the Arizona law is a felony, punishable by imprisonment and fine. See A.R.S. §§ 13-601, -603, -702, and -801 for more details.

      In addition, while recording a conversation with the consent of only one party is legal in Arizona, a lawyer's recording of a conversation without the consent of all parties may be unethical under the Arizona Rules of Professional Conduct. See State Bar of Arizona Ethics Opinions 75-13, 95-03. However, an attorney may advise her client to record a conversation without the consent of all parties as long as the recording is legal and the attorney does not participate in the recording. See State Bar of Arizona Ethics Opinion 00-04.

      In addition to subjecting you to criminal prosecution, violating the Arizona wiretapping law can expose you to a civil lawsuit for damages by an injured party. See A.R.S. § 12-731.

      Arizona Law on Recording Court Hearings and Public Meetings

       

      Court Hearings

      Video and tape recording in Arizona state courtrooms is governed by Arizona Supreme Court Rule 122. Rule 122 allows recording at the sole discretion of the presiding judge. However, recording is flatly prohibited in juvenile court proceedings. The full text of Rule 122 can be found on the Arizona Judicial Branch's Arizona Court Rules website, under the "Current Arizona Rules" link. See also the Arizona Supreme Court website on cameras in the Court.

      If the presiding judge wants to limit or prohibit recording, he or she must make "specific, on-the-record findings that there is a likelihood of harm arising from one or more" of the following factors:

      1. The impact of coverage upon the right of any party to a fair trial;
      2. The impact of coverage upon the right of privacy of any party or witness;
      3. The impact of coverage upon the safety and well-being of any party, witness or juror;
      4. The likelihood that coverage would distract participants or would detract from the dignity of the proceedings;
      5. The adequacy of the physical facilities of the court for coverage;
      6. The timeliness of the request pursuant to subsection (f) of this Rule; and
      7. Any other factor affecting the fair administration of justice.

      "Requests by the media for coverage" of court proceedings must generally be made no less than two days in advance of the hearing. Rule 122(f). "Individual journalists" may use "personal audio recorders in the courtroom." Rule 122(i). However, Rule 122 limits the number of television cameras allowed in the courtroom and establishes requirements for their placement and wiring.

      Rule 122(k) forbids "[c]overage of jurors in a manner that will permit recognition of individual jurors by the public." Arizona law also explicitly prohibits interception of jury deliberations. A.R.S. § 13-3005(A)(3).

      The federal trial court in Arizona appears to prohibit recording devices and cameras in the courtroom. See D. Ariz. LRCiv 43.1. However, according to the website of the 9th Circuit, the federal appeals court, the 9th Circuit is "one of two federal appellate courts to regularly allow still and video cameras and audio recorders in the courtroom for purposes of reporting on the proceeding." The Court has promulgated guidelines for photographing, recording, and broadcasting in the courtroom. The guidelines vest discretion in the presiding judge to grant or deny requests for recording court proceedings, and requests must generally be made at least three business days in advance. The guidelines apply to coverage by the "media," or "any person or entity regularly engaged in the gathering and dissemination of news." It is not clear from the guidelines whether these terms include non traditional media organizations or citizen journalists.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      Arizona's open meetings law provides that "[a]ll or any part of a public meeting of a public body may be recorded by any person in attendance by means of a tape recorder or camera or any other means of sonic reproduction, provided that there is no active interference with the conduct of the meeting." A.R.S. § 38-431.01(F).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Arizona.

       

      Jurisdiction: 

      Subject Area: 

      California Recording Law

      Note: This page covers information specific to California. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      California Wiretapping Law

      California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code § 632. The statute applies to "confidential communications" -- i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002).  A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).

      If you are recording someone without their knowledge in a public or semi-public place like a street or restaurant, the person whom you're recording may or may not have "an objectively reasonable expectation that no one is listening in or overhearing the conversation," and the reasonableness of the expectation would depend on the particular factual circumstances.  Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place.  

      If you are operating in California, you should always get the consent of all parties before recording any conversation that common sense tells you might be "private" or "confidential." In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Cal. Penal Code § 637.2.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: California for more information on California wiretapping law.

      California Law on Recording Court Hearings and Public Meetings

      Court Hearings

      In a California state courtroom, you may be able to use a recording device if specific requirements are met. Anyone may use an inconspicuous personal recording device for note-taking purposes with the advance permission of the judge. For photographing, recording (other than as above), or broadcasting a court proceeding, you must file official media coverage request forms. These forms must be filed with the court at least five days before the event to be covered. The court has broad discretion to grant or deny such requests based on a number of factors. See Rule 1.150 of the California Rules of Court for details.

      Federal courts in California are part of the Ninth Circuit. In Ninth Circuit appellate proceedings, cameras and recording devices are permitted at the discretion of the presiding panel of judges. To get permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom three days in advance, although the panel can waive the advance notice requirement. Recording devices and cameras generally are prohibited in federal district courts in California.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in California, you may make an audio or video recording unless the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. Cal. Gov't Code § 11124.1(a); Cal Gov't Code §§ 54953.5(a),-.6.

      For details on your right of access to public meetings, see the Access section and the The Reporters Committee for Freedom of the Press's Open Government Guide: California.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide.

      Jurisdiction: 

      Subject Area: 

      District of Columbia Recording Law

      Note: This page covers information specific to the District of Columbia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      DC Wiretapping Law

      The District of Columbia's wiretapping law is a "one-party consent" law. DC makes it a crime to record a phone call or conversation unless one party to the conversation consents. See D.C. Code § 23-542. Thus, if you operate in DC, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      In addition to subjecting you to criminal prosecution, violating the DC wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: District of Columbia for more information on DC wiretapping law.

      DC Law on Recording Court Hearings and Public Meetings

      Court Hearings

      District of Columbia "state" courts prohibit recording in both trial and appellate courtrooms.

      Federal courts in the District, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      The District of Columbia has no statutory provision about the use of recording devices or cameras at public meetings (i.e., meetings of a governmental body required to be open to the public by law), but the government body holding the meeting generally must make transcripts of the meeting available for public copying.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: District of Columbia.

      Jurisdiction: 

      Subject Area: 

      Florida Recording Law

      Note: This page covers information specific to Florida. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Florida Wiretapping Law

      Florida's wiretapping law is a "two-party consent" law. Florida makes it a crime to intercept or record a "wire, oral, or electronic communication" in Florida, unless all parties to the communication consent. See Fla. Stat. ch. 934.03. Florida law makes an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard. If you are operating in Florida, you may record these kinds of in-person conversations without breaking the law. However, you should always get the consent of all parties before recording any telephone conversation and any in-person that common sense tells you is private.

      In addition to subjecting you to criminal prosecution, violating the Florida wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Florida for more information on Florida wiretapping law.

      Florida Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Florida state courts generally allow the use of recording devices in the courtroom, both at the trial and appellate level. The presiding judge may prohibit recording devices from the courtroom only upon a showing that the presence of such devices will adversely affect the fairness or integrity of the proceedings.

      Federal courts in Florida generally prohibit the use of recording devices and cameras in the courtroom, both at the trial and the appellate level.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in Florida, generally you are permitted to use sound or video recording devices, so long as your recording does not disrupt the meeting.

      For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Florida.

      Jurisdiction: 

      Subject Area: 

      Georgia Recording Law

      Note: This page covers information specific to Georgia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Georgia Wiretapping Law

      Georgia's wiretapping law is a "one-party consent" law for purposes of making audio recordings of conversations. Georgia makes it a crime to secretly record a phone call or in-person conversation "originat[ing] in any private place" unless one party to the conversation consents. See Ga. Code §§ 16-11-62(1), 16-11-66 (link is to the entire code; you need to click through to Title 16, Chapter 11, Article 3, Part I, and then choose the specific provisions). Therefore, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      In addition, Georgia has a special provision regarding the use of a hidden video camera. The law makes it a crime to use a device to "observe, photograph, or record the activities of another which occur in any private place and out of the public view" unless the person making the recording gets the consent of all the persons observed. Ga. Code § 16-11-62(2) (link is to the entire code; you need to click through to Title 16, Chapter 11, Article 3, Part I, and then choose the specific provision).

      In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for damages by an injured party.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Georgia for more information on Georgia wiretapping law.

      Georgia Law on Recording Court Hearings and Public Meetings

      Court Hearings

      You may record state court proceedings in Georgia, subject to a number of restrictions. At the trial court level, in order to record a court hearing, you must file a timely written request on a form provided by the court with the judge involved in the proceeding. The judge may decide to allow only one camera or recording device at a given time, and there is a prohibition on photographing or televising members of the jury.

      At the appellate court level, you must make a written request to the court at least seven days in advance, and radio and television media are required to supply the court with a video or audio of the covered proceedings. It is not clear whether this latter requirement would apply to online publishers creating audio podcasts, video podcasts, or other online media similar to radio and television. In the appellate court, limitations are imposed on the number of cameras and photographers allowed in the courtroom at any given time.

      In the Georgia Supreme Court, recording, photographing, and broadcasting is allowed without prior approval unless it "distracts from the dignity of the proceeding." The Supreme Court retains the authority to "limit, restrict, prohibit, and terminate the photographing, recording, and broadcasting of any judicial session." Limitations are imposed on the number of cameras and photographers allowed in the courtroom at any given time.

      Federal courts in Georgia, both at the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      Georgia law expressly provides that "[v]isual, sound, and visual and sound recording during open meetings shall be permitted." Ga. Code § 50-14-1 (link is to the entire code; you need to click through to Title 50, Chapter 14, and then choose the specific provision).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Georgia.

      Jurisdiction: 

      Subject Area: 

      Illinois Recording Law

      Note: This page covers information specific to Illinois. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Illinois Wiretapping Law

      In People v. Melongo, Docket No. 114852 (Ill. Mar. 20, 2014), the Supreme Court of Illinois held that Illinois' two-party eavesdropping statute, 720 Ill. Comp. Stat. 5/14-1, -2 (scroll down), was unconstitutional on its face. The statute made it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversation, regardless of whether the parties had an expectation of privacy. The Court held that the recording provisions of the statute, as written, adversely affected the First Amendment rights of people making recordings in a substantial number of circumstances where there were no legitimate privacy interests.  The Court further held that a provision of the statute prohibiting the disclosure of recordings likewise ran afoul of the First Amendment.

      This does not mean, however, that recording of communications is now universally permitted in Illinois:

      • Recordings may still be subject to the "one-party" consent rule of the Federal wiretap act.
      • Communications reaching other states may be subject to the wiretapping laws of the remote state.
      • Secret recordings may still support an Illinois common-law claim for intrusion into the privacy of another. See, e.g., Narducci v. Village of Bellwood, 444 F. Supp. 2d 924, 938 (N.D. Ill. 2006).
      • Another Illinois statute, not necessarily affected by the decision in the Melongo case, makes it illegal to "videotape, photograph, or film" people without their consent in "a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom." 720 Ill. Comp. Stat. 5/26-4(a) (scroll down).

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Illinois for more information on Illinois wiretapping lawyer.

      Illinois Law on Recording Court Hearings and Public Meetings

      Court Hearings

      In Illinois state trial courts, the use of sound and video recording devices is prohibited except by an order of the Illinois Supreme Court. Use of recording devices is permitted in hearings of the state appellate courts, but you must notify the clerk of the court at least five days in advance, and the appellate court may choose to prohibit recording. If media coverage is permitted, only one television and one still camera will be allowed at any given time.

      Federal courts in Illinois, both at the trial and appellate level, prohibit the use of sound and video recording devices in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      A provision of the Illinois open meetings law states that "any person may record the proceedings at meetings required to be open by this Act by tape, film or other means." The statute goes on, however, to say that the authority holding the meeting shall make "reasonable rules to govern the right to make such recordings." 5 Ill Comp. Stat. 120/2.05 (scroll down).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Illinois.

      Jurisdiction: 

      Subject Area: 

      Indiana Recording Law

      Note: This page covers information specific to Indiana. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Indiana Wiretapping Law

      Indiana's wiretapping law is a "one-party consent" law. Indiana makes it a crime to record a telephone conversation unless one party to the conversation consents. See Ind. Code § 35-31.5-2-176 and Ind. Code § 35-33.5-5-5. Therefore, you may record a telephone conversation if you are a party to the conversation or you get permission from one party to the conversation. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In-person conversations do not appear to be covered by the law, but it cannot hurt to get consent before recording just in case.

      In addition to subjecting you to criminal prosecution, violating the Indiana wiretapping law can expose you to a civil lawsuit for damages by an injured party. Ind. Code § 35-33.5-5-4.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Indiana for more on Indiana wiretapping law.

      Indiana Law on Recording Court Hearings and Public Meetings

      Court Hearings

      You are permitted to use recording devices in the Indiana Supreme Court and in Indiana appellate court proceedings. For the Indiana Supreme Court, you must make a request twenty-four hours before the start of the proceedings. For Indiana appellate courts, you must make a request forty-eight hours before the start of the proceedings. (Note that all appellate oral arguments are also webcast live and are available on-line.)

      As part of a pilot project that ended December 31, 2007, Indiana state trial courts allowed recording devices in court where both parties agreed. It is presently unclear whether this state of affairs will continue. Initial reports do not appear positive.

      Federal courts in Indiana, both at the trial and appellate level, prohibit the use of sound and video recording devices in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in Indiana, the presiding body may not prohibit you from making a sound recording. See Ind. Code § 5-14-1.5-3(a) (scroll down) (meetings of "governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them"). The precise status of video recording is less clear under the law, but in practice still photography and video recording are commonplace.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Indiana.

      Jurisdiction: 

      Subject Area: 

      Massachusetts Recording Law

      Note: This page covers information specific to Massachusetts. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      Massachusetts Wiretapping Law

      Massachusetts's wiretapping law often referred to is a "two-party consent" law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium. See Mass. Gen. Laws ch. 272, § 99. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not "secret"). Under Massachusetts's wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

      This law applies to secret video recording when sound is captured. In a 2007 case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet. From this case, it appears that you can violate the statute by secretly recording, even when you are in a public place. However, in a 2011 case, the U.S. Court of Appeals for the First Circuit held that recording police activity in public is independently protected by the First Amendment, and that it is unconstitutional for the state to prosecute those recording the police in public under Massachusetts's wiretapping law; this ruling might protect secret as well as open recordings.

      In addition to subjecting you to criminal prosecution, violating the Massachusetts wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Massachusetts for more information on Massachusetts wiretapping law.

      Massachusetts Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Massachusetts Supreme Judicial Court Rule 1:19 says that judges should "permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public," with certain limitations.  Members of the media must make a request to the court a reasonable time in advance of the proceeding. Courts generally do not allow recording devices in certain types of sensitive cases, and the judge retains the discretion to limit the use of recording devices to preserve the decorum of the court and the fairness of the proceeding.  See this Massachusetts Bar Association post for details. Supreme Judicial Court oral arguments are webcast and archived online.

      Federal courts in Massachusetts, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      Massachusetts open meetings law expressly permits sound and video recording of public meetings (i.e., meetings of a governmental body required to be open to the public by law), except for executive sessions, by anyone in attendance. The statute provides that:

      After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.

      See Mass. Gen. Laws. ch. 30A, § 20(e).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Massachusetts.

      Jurisdiction: 

      Subject Area: 

      Michigan Recording Law

      Note: This page covers information specific to Michigan. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Michigan Wiretapping Law

      Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties."  Mich. Comp. Laws § 750.539c.  This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others.  See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982).  The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation. In addition, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. 

      Michigan law also makes it a crime to "install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place." Mich. Comp. Laws § 750.539d. The law defines a "private place" as a place where a person "may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access." Mich. Comp. Laws § 750.539a. You should always avoid these kinds of surveillance tactics.

      Michigan law also prohibits you from "us[ing] or divulg[ing] any information which [you] know[] or reasonably should know was obtained in violation of the other wiretapping laws.  Mich. Comp. Laws § 750.539e.  To the extent this statute forbids you from publishing truthful information on a matter of public concern provided to you by a third-party (when you had no role in the wiretapping), it is probably unconstitutional. See Bartnicki v. Vopper, 532 U.S. 514 (2001).

      In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for money damages by an injured party.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Michigan for more information on Michigan wiretapping law.

      Michigan Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Michigan law generally allows sound and video recording of state court proceedings, but you must request permission from the presiding judge at least three business days beforehand. The court has discretion to terminate or prohibit recording if it determines that it would be in the interests of justice. For instance, the court may exclude recordings of particularly sensitive witnesses or testimony involving confidential business information.

      Federal courts in Michigan, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      When you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), Michigan law gives you the right to make video and sound recordings of the meeting and to broadcast live. The exercise of this right is not dependent on prior approval by the public body, but the public body may establish reasonable rules and regulations to avoid disruption of meetings. Mich. Comp. Laws § 15.263(1).

      For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan.

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      Missouri Recording Law

      Note: This page covers information specific to Missouri. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Missouri Wiretapping Law

      Missouri's wiretapping law is a "one-party consent" law. Missouri makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. See Mo. Rev. Stat. § 542.402.2. Therefore, if you operate in Missouri, you may record a conversation or phone call if you are a party to the conversation or you get prior consent from one party to the conversation, unless you are doing so to commit a criminal or tortious act. Nevertheless, if you intend to record conversations involving people located in Missouri and another state, you should play it safe and abide by the recording law of the most restrictive state involved.

      Missouri's law criminalizes recording and attempting to record any wire or oral communications. See Mo. Rev. Stat. § 542.402.1. The statute defines "wire communications" as those made "in whole or in part through the use of "wire, cable, or other like connection between the point of origin and the point of reception." See Mo. Rev. Stat. § 542.400(12). If at least one party in a converation is using a wired device, this statute is applicable; however, communications entirely between cordless phones receiving radio signals are not protected by Missouri's wiretapping law. See State v. Martinelli, 972 S.W.2d 424 (Mo.App. E.D.1998); State v. King, 873 S.W.2d 905 (Mo.App. S.D.1994). Missouri also prohibits the disclosure or use of the contents of any wire communication obtained in violation of this section. See Mo. Rev. Stat. § 542.402.1.

      This law only extends to oral communications which are "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." See Mo. Rev. Stat. § 542.400(8). Therefore, you may be able to record in-person conversations occurring in a public place where there is no reasonable expectation of privacy without consent.

      Violation of the Missouri law is a class D felony, punishable by imprisonment and fine. See Mo. Rev. Stat. § 542.402.1. In addition to subjecting you to criminal prosecution, violating the Missouri wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Mo. Rev. Stat. § 542.418.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Missouri for more information on Missouri wiretapping law. 

      Missouri Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Media coverage is allowed in Missouri state courts with the permission of the presiding judge. See Court Operating Rule 16. Media coverage is explicitly denied in any court proceeding that is required to be held in private under Missouri law, as well as juvenile, adoption, domestic relations, or child custody hearings. See C.O.R. 16.02. Equipment and personnel are limited to one still photographer with two cameras and two lenses, one television camera and camera operator, and one audio system. See C.O.R. 16.04. For additional information, please refer to the Missouri Supreme Court's Cameras in the Courtroom: A Guide to Missouri's Court Operating Rule 16.

      Federal courts in Missouri, at both the trial and appellate level, typically prohibit phones, recording devices, and cameras in the courtroom. There is a limited exception to this rule for civil cases in the U.S. District Court for the Eastern District of Missouri participating in the Cameras in the Courtroom Pilot Project issued by the Judicial Conference of the United States. See Local Rule 13.02.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      Missouri law provides for "the recording by audiotape, videotape, or other electronic means of any open meeting," though the public body may establish guidelines regarding the manner of recording in order to minimize disruption. See Mo. Rev. Stat. § 610.020.3. However, a closed meeting cannot be recorded without the permission of the public body; doing so without permission amounts to a Class C misdemeanor. See Mo. Rev. Stat. § 610.020.3.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Missouri.

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      New Jersey Recording Law

      Note: This page covers information specific to New Jersey. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      New Jersey Wiretapping Law

      New Jersey's wiretapping law is a "one-party consent" law. New Jersey makes it a crime to intercept or record an in-person or telephone conversation unless one party to the conversation consents. N.J. Stat. §§ 2A:156A-3, -4. (link is to the entire code; you need to click through to Title 2A, Article 156A, and then locate the specific provisions). Thus, if you operate in New Jersey, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      In addition to subjecting you to criminal prosecution, violating the New Jersey wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: New Jersey for more information on New Jersey wiretapping law.

      New Jersey Law on Recording Court Hearings and Public Meetings

      Court Hearings

      New Jersey law places restrictions on your ability to make sound and video recordings in state courtrooms. First, the New Jersey Supreme Court guidelines permit audio and video recording for future broadcast only by those with "bona fide press credentials" issued by the New Jersey Press Association or those with identification from a "bona fide media outlet," defined as an "organization that reports the news and whose news reports are made available to the general public by being published or broadcast on a regular schedule by television, radio, retail sales, or by subscription where there is no membership or dues requirement to subscribe." This could present a substantial obstacle for amateur and other non-traditional journalists and online publishers. Second, you must make a request for permission a reasonable time in advance, and the court may limit media coverage where it has the potential to harm parties or witnesses. You may, however, appeal any denial of coverage to a state appellate court (if coverage was denied by a district court) or to the State Supreme Court (if coverage was denied by an appellate court). Recording devices are prohibited in certain particularly sensitive types of proceedings, such as those involving juveniles. In addition, the court may place restrictions on the number of cameras allowed into a courtroom at a particular time. For more detailed information, please consult the Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in The Courts of New Jersey.

      Federal courts in New Jersey, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      New Jersey law allows sound and video recording devices in public meetings (i.e., meetings of a governmental body required to be open to the public by law), subject to reasonable restrictions, such as advance notice, that generally track those imposed in state courtrooms (above).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: New Jersey.

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      New York Recording Law

      Note: This page covers information specific to New York. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      New York Wiretapping Law

      New York's wiretapping law is a "one-party consent" law. New York makes it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. N.Y. Penal Law §§ 250.00, 250.05. (link is to the entire code, you need to click on the Penal Code section, then choose Article 250 and locate the specific provisions). Thus, if you operate in New York, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: New York for more information on New York wiretapping law.

      New York Law on Recording Court Hearings and Public Meetings

      Court Hearings

      New York state appellate courts permit recording subject to the approval of the particular court. Only two television cameras and two still cameras are allowed in the courtroom at any given time. New York trial courts do not allow recording devices in courtrooms.

      Federal appellate courts in the Second Circuit, which encompasses New York, permit sound and video recordings of oral arguments under certain circumstances. The Second Circuit does not permit recording of criminal matters, but "any person or entity regularly engaged in the gathering and dissemination of news" may record oral arguments in civil cases if they notify the calendar clerk no later than noon two days prior to the proceeding. The presiding judges have the discretion to exclude the media from the courtroom, and there are limitations on the number of cameras that will be allowed at any time. Recording devices are not permitted in federal district courts in New York.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      New York courts have held that persons attending a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) have a right to tape or video record the meeting in an unobtrusive way. This does not mean that a governmental body holding a meeting cannot impose restrictions on the use of recording devices, but it may not ban such devices altogether.

      For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: New York.

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      North Carolina Recording Law

      Note: This page covers information specific to North Carolina. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      North Carolina Wiretapping Law

      North Carolina's wiretapping law is a "one-party consent" law. North Carolina makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. N.C. Gen. Stat. § 15A-287. Thus, if you operate in North Carolina, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      In addition to subjecting you to criminal prosecution, violating the North Carolina wiretapping law can expose you to a civil lawsuit for damages by an injured party. N.C. Gen. Stat. § 15A-296.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: North Carolina for more information on North Carolina wiretapping law.

      North Carolina Law on Recording Court Hearings and Public Meetings

      Court Hearings

      You may use a tape recorder in North Carolina state courtrooms if you obtain the permission of the presiding judge. You may use other recording devices, such as cameras, if you get the permission of the judge and keep them partitioned away from and unobserved by participants in the courtroom. The presiding judge may waive this requirement in certain cases. Only two video cameras and one still photographer are allowed in the court room at a given time, and coverage of certain types of sensitive cases (e.g., trade secrets cases, divorce cases) is prohibited.

      Federal courts in North Carolina, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      North Carolina law gives you the right to make sound and video recordings of public meetings (i.e., meetings of a governmental body required to be open to the public by law). The governmental body may "regulate the placement and use of equipment necessary for broadcasting, photographing, filming, or recording a meeting, so as to prevent undue interference with the meeting," but the body must allow equipment to be placed within the meeting room so as to permit its intended use, and "the ordinary use of such equipment shall not be declared to constitute undue interference." N.C. Gen. Stat. § 143-318.14.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: North Carolina.

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      Ohio Recording Law

      Note: This page covers information specific to Ohio. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Ohio Wiretapping Law

      Ohio's wiretapping law is a "one-party consent" law. Ohio law makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Ohio Rev. Code § 2933.52. Thus, if you operate in Ohio, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      Additionally, consent is not required for oral communications (e.g., in-person conversations) where the speakers does not have a reasonable expectation of privacy in the communication. See Ohio Rev. Code § 2933.51. This means that you are free to record a conversation happening between two people in a public place such as a street or a restaurant, so long as you are not using sensitive recording equipment to pick up what you otherwise would not hear.

      In addition to subjecting you to criminal prosecution, violating the Ohio wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Ohio for more information on Ohio wiretapping law.

      Ohio Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Ohio state courts generally allow the use of recording devices, but impose a number of important restrictions. Most importantly, witnesses and victims of crimes have a right to object to recording in state trial courts. If a witness or victim objects, the court will prohibit recording. In addition, you must get the consent of the presiding judge in advance, and the judge may impose limits on the number of recording devices in the courtroom at any given time. Courts may also establish their own local rules regarding recording devices.

      Federal courts in Ohio, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      While the Ohio open records law does not specifically state whether you can use recording devices at a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), the Ohio Attorney General has an issued an opinion stating that using them is permissible when it does not unduly interfere with the meeting. As a matter of practice, recording devices apparently are common in Ohio public meetings.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Ohio.

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      Pennsylvania Recording Law

      Note: This page covers information specific to Pennsylvania. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Pennsylvania Wiretapping Law

      Pennsylvania's wiretapping law is a "two-party consent" law. Pennsylvania makes it a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent. See 18 Pa. Cons. Stat. § 5703 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter B, and then the specific provision).

      The law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectation." See 18 Pa. Cons. Stat. § 5702 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter A, and then the specific provision). Therefore, you may be able to record in-person conversations occurring in a public place without consent. However, you should always get the consent of all parties before recording any conversation that common sense tells you is private.

      In addition to subjecting you to criminal prosecution, violating the Pennsylvania wiretapping law can expose you to a civil lawsuit for damages by an injured party.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Pennsylvania for more information on Pennsylvania wiretapping law.

      Pennsylvania Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Pennsylvania state courts generally prohibit the use of recording devices in the courtroom, both at the trial and appellate court level. However, individual judges may authorize recordings of non-jury civil trials, if both parties to the lawsuit consent. In that case, individual witnesses may object to recording and be excluded from coverage. Local courts may also establish additional rules.

      Federal courts in Pennsylvania, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      Recording devices are allowed in public meetings (i.e., meetings of a governmental body required to be open to the public by law) in Pennsylvania. Governmental bodies may adopt their own rules to maintain order at their meetings, but those rules may not include flat prohibitions on recording.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Pennsylvania.

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      Tennessee Recording Law

      Note: This page covers information specific to Tennessee. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Tennessee's wiretapping law is a "one-party consent" law. Tennessee makes it a crime to intentionally intercept any wire, oral or "electronic communication" to overhear or record a phone call or conversation unless one party consents to the conversation. The law defines an "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical or photoelectronic facilities." Tenn. Code Ann. § 40-6-303. If you are operating in Tennessee, you should always get the consent of at least one party before recording an in-person conversation or telephone call. In addition to subjecting you to criminal prosecution, violating the Tennessee wiretapping statute can expose you to a civil lawsuit for actual damages, punitive damages, and  reasonable attorney's fees, by an injured party. Tenn. Code Ann. § 39-13-603.

      While you generally are permitted to photograph or record video of people without permission in most public places, it is illegal to photograph a person when that individual has a reasonable expectation of privacy if that photograph would "offend or embarass an ordinary person" or if the photograph was taken for the "purpose of sexual arousal or gratificaiton of the defendant." Tenn. Code Ann. §39-13-605.

      Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Tennessee for more information on Illinois wiretapping lawyer.

      Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Tennessee law permits the use of still photography and audio and video recording devices in "any trial, hearing, argument on appeal, or other matter held in open court that the public is entittled to attend." Tenn. Sup. Ct. R. 30(B)(3). Consent of the parties is not required except for juvenile court proceedings. A media request should be submitted two days before the proceeding and these requests are subject to limitations imposed by the presiding judge. One such limitation is that of "pooling" in which a single media representative is permitted into the court on behalf of a number of media organizations; in a "pooling" circumstance, the media will select its representative to act as a liason for the proceeding. Tenn. Sup. Ct. R. 30(F)(2).

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      Tennessee's open meeting laws require that all government meetings are open to the public at all times. Tenn. Code. Ann. § 8-44-102. While Tennessee does not have any provision related to the broadcasting of these meetings, the Tennessee law dictates that all minutes of a government meeting must be promptly and fully recorded. Tenn. Code Ann. § 8-44-104.

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Tennessee.

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      Texas Recording Law

      Note: This page covers information specific to Texas. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Texas Wiretapping Law

      Texas's wiretapping law is a "one-party consent" law. Texas makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Texas Penal Code § 16.02. Therefore, if you operate in Texas, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.

      The law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectation." See Texas Crim. Proc. Code § 18.20. Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or a restaurant, without consent.

      In addition to subjecting you to criminal prosecution, violating the wiretapping law can expose you to a civil lawsuit for damages by an injured party. Texas Civ. Prac. & Rem. Code § 123.002.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Texas for more information on Texas wiretapping law.

      Texas Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Texas law permits sound and video recording of state appellate proceedings, if you submit a request five days before the proceeding. These requests are subject to limitations imposed by the presiding judge. In state trial courts, use of sound and video recording devices is permitted with the consent of the trial judge, the parties, and each witness to be recorded. Additionally, a number of local rules imposing additional or different limitations apply in particular courts.

      Federal courts in Texas, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      Sound and video recording devices may be used at public meetings (i.e., meetings of a governmental body required to be open to the public by law) in Texas, although the agency or other governmental body holding the meeting may impose "reasonable rules to maintain order at a meeting." Texas Gov't Code § 551.023(b).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Texas.

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      Virginia Recording Law

      Note: This page covers information specific to Virginia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Virginia Wiretapping Law

      Virginia's wiretapping law is a "one-party consent" law. Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Virginia Code § 19.2-62. Therefore, if you operate in Virginia, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should abide by the recording law of the most restrictive state involved, or play it safe and get the consent of all parties.

      The wiretapping law covers oral communications when the speakers have an "expectation that such communication is not subject to interception under circumstances justifying such expectations," Virginia Code § 19.2-61, But absent the speakers' justified expecation, the law does not apply. See Belmer v. Commonwealth. Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or restaurant, without consent. However, you should seek the consent of one or all of the parties before recording any conversation that an ordinary person would deem private.

      Violation of the Virginia law is a felony, punishable by imprisonment and fine. See Virginia Code § 18.2-10 for more details. In addition, while recording a telephone conversation with the consent of only one party is legal in Virginia, a lawyer’s recording of a telephone conversation without the consent of all parties was found to be unethical under the Virginia Rules of Professional Conduct (United States v. Smallwood).

      In addition to subjecting you to criminal prosecution, violating the Virginia wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Virginia Code § 19.2-69.

      Virginia Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Recording is allowed in Virginia state courtrooms at the sole discretion of the presiding judge. It is, however, flatly prohibited in certain types of sensitive cases (e.g., those involving juveniles or sexual offenses; however, a juvenile who is tried as an adult is excluded from the prohibition on recording. See Novak v. Commonwealth, 20 Va. App. 373, 390-91 (1995)). Only two television cameras and one still photographer are allowed in a courtroom at any given time. For a complete list of the statutory guidelines, see Va. Code 19.2-266.

      Federal courts in Virginia, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide.

      Public Meetings

      Virginia open meetings law provides that any person may "photograph, film, record or otherwise reproduce any portion of a meeting required to be open." However, the public body conducting the meeting "may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings." Virginia Code § 2.2-3707(H). But the adopted rules may not "prohibit or otherwise prevent any person from photographing, filming, recording, or otherwise reproducing any portion of a meeting required to be open," and "[n]o public body shall conduct a meeting required to be open in any building or facility where such recording devices are prohibited." Virginia Code § 2.2-3707(H).

      For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Virginia.

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      Washington Recording Law

      Note: This page covers information specific to Washington. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

      Washington Wiretapping Law

      Washington's wiretapping law is a "two-party consent" law. Washington makes it a crime to intercept or record a private telephone call, in-person conversation, or electronic communication unless all parties to the communication consent. See Wash. Rev. Code § 9.73.030(1). Whether a conversation or other communications is "private" depends on a number of case-specific factors, such as the subjective intention of the parties, the reasonableness of their expectation that the conversation would be private, the location of the conversation, and whether third parties were present. State v. Townsend, 57 P.3d 255, 259 (Wash. 2002). You should always get the consent of all parties before recording any conversation that common sense tells you is private.

      In Washington, you can satisfy the consent requirement by "announc[ing] to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted," so long as this announcement is also recorded. Wash. Rev. Code § 9.73.030(3). In addition, an employee of a "regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis" can establish the consent of the party recorded even without an announcement if he or she uses a recording or transmitting device that is "readily apparent or obvious to the speakers." Wash. Rev. Code § 9.73.030(4).

      The language of this consent provision suggests that it probably does not apply to an employee of an online publication or a non-professional journalist who is not employed by a media outlet on a full-time, part-time, or contractual basis. This limitation may be of little importance, however, because Washington courts have held -- in a non-media context -- that a person will be deemed to have consented to having his or her communication recorded when he or she conveys a message knowing that it will be recorded. See In re Marriage of Farr, 940 P.2d 679 (Wash. App. 1997) (speaker consented when leaving a message on a telephone answering machine, the only function of which is to record messages); Townsend, 57 P.3d at 260 (person sending email consented to its recording because he "had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent").

      In addition to subjecting you to criminal prosecution, violating the wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Wash. Rev. Code § 9.73.060.

      Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Washington for more information on Washington wiretapping law.

      Washington Law on Recording Court Hearings and Public Meetings

      Court Hearings

      Washington state courts generally permit the use of recording devices in the courtroom, although the presiding judge must give express permission before recording and may impose limitations when it would be distracting to the participants or impair the dignity of the proceedings. In 1963, Washington State lawyers, judges, and members of the press formed the Bench-Bar-Press Committee, which seeks to foster better relationships between the bench and the press. The Committee publishes an annual report that may be of interest.

      Federal courts in Washington are part of the Ninth Circuit. In Ninth Circuit appellate proceedings, cameras and recording devices are permitted at the discretion of the presiding panel of judges. To get permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom three days in advance, although the panel can waive the advance notice requirement. Recording devices and cameras generally are prohibited in federal district courts in Washington.

      For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

      Public Meetings

      Washington law allows you to use sound and video recording devices at public meetings (i.e., meetings of a governmental body required to be open to the public by law), unless they disrupt the orderly conduct of the meeting.

      For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Washington.

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      Acquiring Documents and Other Property

      Sometimes, you may want to acquire documents or other tangible property in order to develop a story or confirm the accuracy of facts learned from a source. This could include anything from a photograph to a computer hard drive to internal documents belonging to a company or government body. The following sections address some of the legal issues you could face in acquiring documents and other property:

      • Elements of Conversion: You should be aware that you generally are not permitted to take or even borrow other people's property without their permission. If you intentionally remove someone's property from their possession or deprive them of the use of that property for a substantial amount of time, you could be held liable for what is known as conversion.

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      Elements of Conversion

      Conversion is a tort that exposes you to liability for damages in a civil lawsuit. It applies when someone intentionally interferes with personal property belonging to another person. To make out a conversion claim, a plaintiff must establish four elements:

      • First, that the plaintiff owns or has the right to possess the personal property in question at the time of the interference;
      • Second, that the defendant intentionally interfered with the plaintiff's personal property (sometimes also described as exercising "dominion and control" over it);
      • Third, that the interference deprived the plaintiff of possession or use of the personal property in question; and
      • Fourth, that the interference caused damages to the plaintiff.

      The most direct and obvious way to commit conversion is by taking personal property that belongs to someone else without permission. For example, if you take a framed photograph from the wall of a local restaurant or a document from someone's desk, you may be held liable for conversion, assuming you retain the property for a substantial period of time and thereby interfere with the rightful owner's use and possession of it. It does not matter whether you intend to publish the information, photos, or other content.

      However, if you remove paperwork or photographs from someone's office or home temporarily in order to copy the information -- intending to return the documents to the owner -- you might not be liable for conversion because this temporary interference does not necessarily deprive the rightful owner of the possession or use of the property. See Harper & Row Pubs. v. Nation Enters., 723 F.2d 195, 201 (2nd Cir. 1983) ("Conversion requires not merely temporary interference with property rights, but the exercise of unauthorized dominion and control to the complete exclusion of the rightful possessor."). You should be aware that taking property from someone can also expose you to criminal liability under state laws.

      You can also commit conversion by receiving and retaining property from someone who does not have the right to give the property away. This issue could come up when you receive documents from sources. For example, if a bank employee gives you checking account records for bank customers, you may both be liable for conversion because the employee likely does not have permission from his or her employer to turn over a customer's records. But the legal analysis is not that simple, and whether or not you could be held liable for conversion under these circumstances depends on whether the records you receive are originals or copies.

      As a rule of thumb, you can generally receive and retain copies of documents that belong to someone else, but you may not receive and retain the originals of such documents. The reason is that "the possession of copies of documents -- as opposed to the documents themselves -- does not amount to an interference with the owner's property sufficient to constitute conversion." FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 303 (7th Cir. 1990). However, you may be held liable for conversion for receiving and retaining copies if the rightful owner no longer has either originals or copies of the documents in question. Even if you are held liable for conversion and must return the documents in question, you generally are entitled under the First Amendment to retain copies of the documents for yourself and to disseminate any information contained in them. See id. at 304-05.

      If you receive classified documents or other information relating to national security from a government employee, you may subject yourself to criminal liability under federal espionage-related laws. See the section on Receiving Documents and Information from Government Sources for details.

      Jurisdiction: 

      Subject Area: 

      Receiving Documents and Information from Government Sources

      If you receive documents or other information relating to national security from a government employee (or other person who is authorized to access government documents and information), you could be criminally prosecuted for conspiring with that government employee to violate the federal Espionage Act, located at 18 U.S.C. § 793, or for aiding and abetting that employee's violation of the Act.

      In a recent and highly controversial case, the Department of Justice prosecuted two lobbyists for the American Israel Public Affairs Committee (AIPAC) for conspiring with a former government employee to transmit national defense information to those "not entitled to receive it" in violation of 18 U.S.C. § 793. The indictment alleges that the two lobbyists cultivated a relationship with the former employee in order to gather national defense information relating to U.S. foreign policy in the Middle East and transmitted the information to members of the media, foreign policy analysts, and foreign officials. The indictment further charges one of the lobbyists for aiding and abetting the former employee's illegal disclosure of classified national security information by providing a fax machine on which to receive the employee's communications. The federal district court hearing the case held in 2006 that the prosecution did not violate the First Amendment to the U.S. Constitution. United States v. Rosen, 445 F. Supp.2d 602 (E.D. Va. 2006).

      While the Department of Justice did not prosecute any members of the press in the AIPAC case, prosecutors could conceivably apply the same laws to journalists who receive sensitive government information through leaks from government insiders. This prospect is especially worrisome given the government's longstanding practice of making use of "controlled leaks" to get desired information out to the public.

      Besides 18 U.S.C. § 793, other federal criminal statutes could apply to the receipt and publishing of sensitive government information from government insiders, including 18 U.S.C. § 794 (relating to dissemination of national defense information to an agent of a foreign government), 18 U.S.C. § 798 (relating to the dissemination of classified information about U.S. intelligence activities), the Atomic Energy Act (relating to the dissemination of information relating to nuclear weapons), the Intelligence Identities Protection Act of 1982 (relating to identification of intelligence agents),and 18 U.S.C. § 649 (relating to the theft and receipt of government records and "thing[s] of value"). All of these statutes, including the Espionage Act, require the government to prove some level of bad intent on the part of the defendant. The government has not previously prosecuted journalists under these provisions, but there is some cause for concern in the future as online publishing blurs the line between journalism and more suspect (at least from the government's point of view) forms of information sharing.

      Jurisdiction: 

      Subject Area: 

      Practical Tips for Acquiring Documents and Other Property

      There are a few simple things to keep in mind in order to minimize your risk of a lawsuit or criminal prosecution when acquiring documents and other property for newsgathering purposes:

      • Before you take possession of any documents or other personal property, you should get the express permission of the owner of that property or the person who has the right to possess it. Take the time to figure out who this actually is.
      • Even if you only plan on borrowing documents for a short period of time in order to make copies (which you may be legally entitled to do), it is safer and more ethical to get permission first.
      • Remember that personal property includes tangible items (e.g., photographs, papers, and computers) and intangible items (e.g., domain names and confidential business information).
      • When you receive documents from a source, ask the source whether they are originals or copies. If they are originals, make copies and ask the source to return the originals. If they are copies, you might want to make duplicates of them, in case they are the only extant versions.
      • If you receive a demand for the return of documents received from a source, you should consider making copies of the documents in question and returning the ones you received.
      • Act with caution when dealing with a source who is a present or former government employee or someone with special access to sensitive government information. Be aware that, while it has not happened yet, the federal criminal laws are potentially broad enough to punish you for receipt and dissemination of this kind of information.

      Jurisdiction: 

      Subject Area: 

      Documenting Public Proceedings and Events

      The question of who is a journalist - and by extension, what is journalism -- has come into sharp relief in the context of citizen media coverage of public events, including access to and reporting at election events, court proceedings, conferences, sporting events, and breaking news.

      A critical issue for citizen media coverage of these public events is, of course, access to the events in the first place. Citizen media's access, however, often implicates challenging legal questions. What credentials are necessary and legally appropriate? What protections does the First Amendment provide for "citizen newsgathering" activities in these contexts? Can non-professional journalists be excluded when professional journalists are permitted access? As live-blogging, twittering, and other technologies become more widespread, we expect to see the tension between citizen media creators and event organizers become more pronounced.

      In this section of the guide we discuss your rights to access and document public proceedings and events.

      • Live-Blogging and Tweeting from Court - a guide to covering court proceedings using real-time communication technologies such as Twitter, live-blogging, and streaming.  Various court rules may affect your ability to provide real-time coverage of court proceedings.  These pages provide practical advice on how to avoid legal trouble if you intend to provide live coverage from inside the courthouse, including interviews with journalists and bloggers who have navigated these waters.

      • Documenting Activities at Polling Places - a special resource examining of the laws that impact voters' ability to document their own voting experiences through video and still photography at the 2012 presidential election, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places.  Note that access polling places and the use of photography and video equipment is largely dictated by state law and varies significantly from place to place.

      • Documenting the 2009 Presidential Inauguration - a primer on attending and documenting the 2009 Presidential Inauguration in Washington, DC.  Heightened security measures will be in place across the Washington area that will affect where you can go, what you can bring with you, and what you can do to document the Inauguration.  The primer also includes information on requesting official press credentials.

      Subject Area: 

      Live-Blogging and Tweeting from Court

      Overview

      The popularity of Twitter and live-blogging has introduced a new dimension into a journalist's coverage of court proceedings. The use of these real-time communications technologies has been met with a mixture of both acceptance and criticism from judges and lawyers.

      Note that this section discusses coverage of court proceedings by observers who are not involved in the actual proceedings.  Different rules apply to trial participants: in many situations, those involved in a court proceeding -- as a party, a lawyer, a court official, a juror or a witness -- may be prohibited from discussing the proceeding, or limited in what they can say about it, especially while it is pending. If you are involved in a court proceeding, make sure that you understand any restrictions that may apply.

      For those not directly involved in a proceeding, various court rules may affect the ability of a journalist or member of the public to live-blog or tweet from the courtroom. In particular, a court's administrative or local rules may prohibit or limit the use of electronic devices within a courthouse or courtroom. In some jurisdictions, the local rules allow electronic devices only at the discretion of the presiding judge. Rules of civil or criminal procedure—such as Rule 53 of the Federal Rules of Criminal Procedure — have been interpreted as prohibiting or limiting live-blogging and tweeting from certain proceedings. Ultimately, the application of many of these rules rests in the judge's discretion, and they may not be applied evenly within a jurisdiction.

      Many judges are concerned that live-blogging or tweeting from inside the courtroom may adversely impact the administration of justice. They believe access by witnesses to real-time posting about a trial may taint testimony and undermine the fairness of the trial. Clicking noises from keyboards and beeping from electronic devices may be unwanted physical distractions during proceedings. Certain types of sensitive subject matter, such as testimony from a minor during a custody proceeding, may also give a judge pause before consenting to real-time coverage.

      Despite these concerns and potential legal limitations, many judges are slowly warming to the idea. Some even welcome the use of computers and cell phones in the courtroom as a way to make the judicial system more accessible and transparent to the public. For example, Judge Mark Bennet of the United States District Court for the Northern District of Iowa said in an interview with the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent." Similarly, Judge Thomas Marten of the United States District Court for the District of Kansas told the Associated Press (as reported in the New Mexico Independent), "[t]he more we can do to open the process to the public, the greater the public understanding—the more legitimacy the public system will have in the eyes of the public."

      Below are guidelines to help you avoid legal trouble if you intend to provide live coverage of court proceedings through Twitter, live-blogging or other social media tools.

      Guidelines for Tweeting and Live-Blogging From Court

      Finding Information About Court Rules and Asking for Permission

      1. Start by determining where the proceeding you are interested in covering will be held and which judge will be presiding.

      2. Check the local rules of the courthouse and/or jurisdiction in question. You usually can find local rules on the courthouse's website. The local rules may list special provisions concerning the use of computers and other electronic devices in the courthouse or courtroom. For instance, the local rules might say that the general public cannot bring a computer or cellphone into the courthouse without the permission of a judge. Or, the rules might provide that electronic devices may not be used inside a courtroom without permission, but may be used in the hallways outside the courtrooms. Many variations exist.

      3. Check the court's standing orders, free-standing electronic device policies, and the judge's individual preferences. Courthouse-wide standing orders and electronic device policies will be located on the courthouse's website, and an individual judge's standing orders and preferences will be on a page dedicated to that judge. These materials may provide additional information not addressed in the local rules, such as special limitations on the use of electronic devices in a particular judge's courtroom or information on how to get permission to use a device. For an example, see United States District Court for District of New Jersey Standing Orders.

      4. If the local rules or standing orders do not include any information concerning the use of electronic devices, look for information on whom to contact with questions, and whether the court has a specific procedure for obtaining journalist credentials.

      5. If you're confused about how the rules apply to live-blogging or tweeting, or about press credentials, try contacting the court's Public Information Officer (or "PIO"). The PIO generally responds to media inquiries and processes credential requests. You can find contact information for many court PIO's at the Conference of Court Public Information Officers website.

      6. Lastly, try contacting the judge and/or the judge's staff. We say lastly only because the judge is generally very busy and often does not deal with media requests directly. As a result, your request may be overlooked, or you may anger the judge. Successful live-bloggers have told us that, unless you have an established relationship with a particular judge, you will have better success bringing the request to a bailiff, PIO, or other member of the judge's staff who can then bring the matter to the judge's attention.

      Additional Tips When Asking for Permission

      1. Give the judge or PIO a good reason to approve your request. Successful requests for permission have generally focused on:

      • The nature and public benefit of blogging or tweeting;
      • The public interest in the case;
      • The reporter's professional experience or credentials; and
      • An explanation of how the technology works.

      2. Use your connections. Many of those bloggers and reporters who have previously obtained permission to live-blog a trial already had an established relationship with the judge, bailiff, or PIO. A friendly ear goes a long way. The Media Bloggers Association (MBA) has been advocating for the admittance of bloggers in courtrooms since 2004 and has established relationships with PIOs across the country. The MBA may be able to use its connections to help bloggers who have had trouble bringing their requests to the attention of a PIO or judge. You can contact the MBA for more information.

      3. Search online to see if anyone else has live-blogged a trial in the courthouse in question or before the judge in question. If so, try contacting that blogger/journalist to learn what steps he or she took. Below is a list of some judges that have previously allowed live-blogging in their courtrooms. [Note: the fact that these judges have allowed live-blogging in the past does not guarantee that they will allow it in the future]:

      • California: Superior Court of California, County of Alameda, Judge Larry Goodman (coverage)
      • Colorado: Colorado State Judcial Branch, 20th District, Boulder County, Judge Lael Montgomery (coverage)
      • Florida: United States District Court for the Southern District of Florida, Chief Judge Federico Moreno (coverage)
      • Iowa: United States District Court for the Northern District of Iowa, Judge Mark Bennett (coverage)
      • Kansas: United States District Court for the District of Kansas, Judge Thomas Marten (coverage)
      • Michigan: Ottawa County, 20th Circuit Court, Chief Judge Edward Post (coverage)
      • Pennsylvania: United States District Court for the Eastern District of Pennsylvania, Judge Ronald Buckwalter (coverage)
      • Washington, DC: United States District Court for the District of Columbia, Judge Reggie Walton (coverage)
      • Massachusetts: United States District Court for the District of Massachusetts, Judge Nancy Gertner (coverage)

      4. Remember to conduct yourself in a professional and respectful manner. An overly aggressive request may not be given priority, especially in a busy courthouse.

      5. Finally, where you have not been expressly forbidden from bringing a computer or phone into the courthouse, you may consider just showing up the day of the trial with your computer or smart phone and letting the chips fall where they may, but recognize that this approach may anger the judge, and could even result in confiscation of the electronic device or fines. Use your judgment, be cautious, and certainly do not ignore a judge's decision or a court rule directly on point.

      To make the process of getting permission more concrete for you, we've created a page featuring input we received from bloggers and journalists about their experiences live-blogging or tweeting from court proceedings. See Live-Blogging and Tweeting from Court: Experiences From the Field.

      A Note About Federal Criminal Proceedings:

      In United States v. Shelnutt, 4:09-cr.-14 (M.D. Ga. Nov. 2, 2009), a federal district court in Georgia ruled that Rule 53 of the Federal Rules of Criminal Procedure prohibits tweeting from criminal proceedings in federal court and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the U.S. Constitution. Rule 53 provides:

      Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

      The court interpreted "broadcasting" in Rule 53 to include "sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing."

      This district court opinion has no precedential effect on other courts, and it remains to be seen whether other federal courts will adopt this interpretation of Rule 53. Regardless of how influential the Shelnutt case ends up being, Rule 53 only applies to criminal proceedings, and it only applies in federal—as opposed to state—courts.

      Subject Area: 

      Live-Blogging and Tweeting From Court: Experiences From the Field

      In conjunction with our legal guide on live-blogging and tweeting from court, the CMLP staff conducted interviews with journalists and bloggers with experience live-blogging or tweeting from court.

      The following accounts are summaries of the interviews and include individual experiences from journalists detailing: successful and unsucessful attempts, correspondence with judicial staff and courthouse officials, general observations, and other practical issues encountered.

      Trish Mehaffey, The Cedar Rapids Gazette

      Trish Mehaffey, the courts reporter for The Cedar Rapids Gazette, has had a number of successful experiences live-blogging proceedings in both federal and state court. Recently, District Judge Mark Bennett of the United States District Court for the Northern District of Iowa permitted Mehaffey to live-blog a high-profile insurance fraud case. According to Mehaffey, Judge Bennett generally allows laptops in his courtroom, but permission is required in order to live-blog or tweet. (Northern District Local Rule 83.4(b) permits electronic devices in the courtroom if authorized by order of the court.)

      Mehaffey asked Judge Bennett for permission to live-blog the proceedings prior to the trial. She contacted Judge Bennett via phone and email and explained her interests and proposed methods of coverage. She emphasized that the changes in the news business and explained that satisfying the demand for digital coverage in real-time is important to The Gazette’s business interests. Judge Bennett took several days to consider the request and eventually permitted it. Judge Bennett’s chief concern was physical distractions to the jury or attorneys from keyboard noise. In his correspondence, the judge noted that if noise became a problem during the trial, he would simply ask Mehaffey to stop typing or to move to a different area in the spectator gallery.

      Mehaffey also was allowed to live-blog additional hearings in the same case before Chief Magistrate Judge Paul Zoss. In her email correspondence with Judge Zoss, Mehaffey reiterated that she would only be providing coverage in text and would not capture any audio or video of the proceedings. Judge Zoss granted the request under the same conditions as Judge Bennett.

      In Mehaffey's experience, other judges in the Northern District of Iowa are not as amenable to live-blogging and tweeting. For instance, Mehaffy tells us that Chief District Judge Linda Reade does not allow laptops in the courtroom. When Mehaffey is covering proceedings before Chief Judge Reade, she leaves the courthouse and writes blog posts from her car.

      You can find more information on Trish Mehaffey and her coverage of legal proceedings on The Gazette's website.

      Ben Sheffner, Copyrights & Campaigns

      Former journalist Ben Sheffner is a copyright, First Amendment, and entertainment law attorney. In addition to practicing law, Sheffner maintains the Copyrights & Campaigns blog and writes for Billboard; his work has also been featured on Ars Technica and Slate. In 2009, Sheffner covered two high-profile copyright infringement trials, Capitol Records, et al. v. Jammie Thomas-Rasset and Sony BMG Music Entertainment, et al. v. Joel Tenenbaum. He had different experiences covering each through Twitter and his blog.

      The Thomas-Rasset trial was held in the United States District Court for the District of Minnesota. The local rules in this district permit laptops and cell phones in the courthouse, but use of the devices is prohibited within the courtrooms. Sheffner tells us that Chief District Judge Michael Davis, who presided over the trial, clearly indicated the use of electronic devices within the courtroom was prohibited. Sheffner said a notice was posted directly outside the courtroom reiterating the prohibition. According to Sheffner, at one point during the trial, court room security officers caught an attorney, who was also observing the proceedings, using his BlackBerry in the courtroom. The security officers informed Judge Davis, who called the attorney to the well and publicly reprimanded him. Based on the rules and clear notice, Sheffner did not ask for permission to tweet or blog from the courtroom during the trial. Instead, Sheffner tweeted via BlackBerry from the hallway outside the courtroom and made use of a media room on another floor that had Internet access and desks for use by journalists.

      In the United States District Court for the District of Massachusetts, Sheffner had a much different experience during the Tenenbaum trial. The District of Massachusetts' policy regarding electronic devices prohibits electronic devices in the courthouse except for attorneys and credentialed journalists. Sheffner noted that although he already qualified under the exception as a member of the California bar, he also acquired a Media Identification Card from the court's Administrative Office several weeks prior to the trial. The requirements for the Media Identification card included a short application form and two letters of reference from media organizations for which he had freelanced. Based on his previous work for Slate and Ars Technica, he did not have any difficulty obtaining press credentials. Sheffner cautioned, however, that it was not clear whether the court officials would grant credentials to individual bloggers, amateur journalists, or others who are not affiliated with established media organizations. Also, Sheffner noted that presiding District Judge Nancy Gertner announced early in the trial that the use of laptops and cellular devices in the courtroom was permissible and he did not need to ask for further permission.

      Although the use of electronic devices was authorized during the Tenenbaum trial, and he was able to take notes on his laptop, Sheffner encountered a number of non-legal, practical problems when attempting to tweet the Tenenbaum trial. Sheffner explained that the courthouse had overall weak cellular reception and he was unable to actually send updates from his BlackBerry within the courtroom; nor was there wireless Internet service available in the courthouse. On the final day of the trial, Sheffner discovered that there was a wired ethernet jack available in the area where the trial attorneys were sitting. Sheffner was able to tweet by laptop after extending a cable into the jack from the spectators' gallery and paying for Internet access, but he noted it was very inconvenient and was not sure whether he would have had access to the ethernet jack during the substantive portions of the trial, when it was needed by the attorneys.

      Sheffner's account of the Thomas-Rasset trial can be found on Copyrights & Campaigns, and his coverage of the Tenenbaum trial appears on Ars Technica.

      Henry Lee, San Francisco Chronicle

      Henry Lee, a staff writer for the San Francisco Chronicle, tells us the Superior Court of California, Alameda County, has a policy that prohibits laptops and cellular devices, such as BlackBerries, in the courtrooms. In the past, Lee had covered trials with paper notes by hand in the courtroom and took breaks or waited for the court to recess until typing his notes on a computer.

      While covering the Hans Reiser murder trial, Lee and a group of reporters approached Judge Larry Goodman and requested permission to use laptops and smart phones while covering the trial. According to Lee, Judge Goodman is very “media friendly” and permitted the request without any additional restrictions even though the request was not made before the trial began. Judge Goodman also allowed the sentencing to be filmed by a camera crew. The court bailiffs were notified of the accommodation due to its unusual character.

      Lee also noted that, in his experience, the courts have not made any distinctions between members of the public or members of the press when it comes to the use of electronic devices during proceedings.

      Lee’s account of the trial can be found on the San Francisco Chronicle’s website.

      Subject Area: 

      Documenting Your Vote (2008)

      PLEASE NOTE: This page includes information current as of the November 2008 national elections; we are maintaining this page for archival purposes. Our guide for the November 2012 national elections is here.

      In order to protect voters from interference and intimidation, state governments have enacted a complex array of election laws that regulate what activities are permitted at polling places on Election Day. These laws impact your ability to shoot video or take photographs at a polling place, even if your purpose is just to document your own voting experience. In the vast majority of states, these laws make a distinction between what you can do inside a polling place and what you can do outside a polling place. The laws are more restrictive when it comes to activities inside and within certain buffer zones around the entrance, which are typically 100 feet from the entrance or interior voting area. Outside of the polling place and these buffer zones, your ability to document your voting experience is much freer.

      Because there is no single, national law regulating polling place activities, it is difficult to generalize about what you can and cannot do on Election Day.  You must consult your state's law in order to make sure that your proposed activities are legal.  Nevertheless, the following four general guidelines can help you stay within the law while documenting your vote.

      Guidelines for Avoiding Legal Trouble 

      1. Follow the Rules

      If you want to take photographs or shoot video inside your polling place, you must be cautious to avoid violating the law.  Election laws are serious business – you could be removed from the polling place and even subject to criminal penalties. Some states like Florida, Georgia, Kentucky, Michigan, Nevada, North Carolina, Texas and West Virginia expressly prohibit the use of photographic and recording equipment inside polling places.  In these states, you should respect the law and refrain from doing any recording or photographing inside.  In other states, the election laws are not clear regarding the use of personal photographic and video equipment. 

      At the bottom of this page we've created a chart summarizing the law and on our State Law: Documenting Your Vote page you will find additional information and links to resources to help you determine where your state falls on this issue.  If are unsure as to what is permitted, contact your local election officials or ask a poll worker.

      2. Be Discreet

      Even if you are permitted to take photographs or video inside, you should be discreet and sensitive to the concerns of poll workers and other voters.  The smaller your equipment is, the better.  You are more likely to get permission, and less likely to intimidate other voters, if you use a cell phone camera, rather than a bulky on-the-shoulder video camera or a fancy SLR with a huge telephoto lens.  It will also help if you stick to documenting your own experience rather than documenting the activities of others.  In addition, don’t linger inside the polling place after you’ve cast your vote.  Do your civic duty and then proceed out of the building in an orderly fashion.

      3. Don’t Interfere With Voters or Disrupt the Process

      Keep in mind that all states prohibit activities that interfere with the voting process or intimidate voters, and poll workers and other voters might see your photographing or videotaping as disruptive or intimidating.  You should never photograph or film someone else’s ballot or get too close to other voters with your camera. If a voter objects, stop filming that person immediately. Don’t try to interview other voters inside the polling place and avoid any appearance of trying to solicit or influence someone else’s vote. Leave your buttons, stickers, hats, and other party paraphernalia at home.

      4. Respect the Buffer Zone Outside

      You can do more outside of polling places.  Still, there are some things to keep in mind.  Many states have restricted buffer zones, typically 100 feet outside the entrance to the polling place. In these zones, you generally can’t loiter, interfere with voters, block the entrance, or engage in any campaigning activity.  Although many state laws do not specifically mention filming in these zones, it’s probably safer to shoot outside of the buffer zone, unless you’ve confirmed that your state law allows it. 

      These buffer zones may be marked off with signs or a chalk line.  Or you may be able to determine where the line is by looking for where other people are engaging in electioneering activity freely, or where members of the traditional media or exit pollsters are set up.

      Outside the buffer zone, you can film freely, use a larger camera, and interview voters.  You should still be courteous to others and make every effort not to interfere with anyone’s ability to get to the polls. When interviewing a voter, first get the voter's permission.  If possible, get written permission or record verbal permission on video. Explain to the voter what you intend to do with the video (such as uploading it to the Internet) and get their permission to use their name and likeness for that purpose.

      To help you better understand these guidelines, we've created this short video:

      State Resources

      For specific resources for your state, including a list of election laws, websites, and contact information for election officials in all 50 states and the District of Columbia, see our State Law: Documenting Your Vote page or select one of the links below to go directly to that state's relevant information. (Note: this chart is a work-in-progress.  If you have additional information on this topic, please contact us.)

      State State Law Expressly Prohibits All Recording Inside Polling Place State Law Doesn't Expressly Prohibit All Recording Inside Polling Place
      * see below       		State Officials Take Position Recording Prohibited Inside Polling Place Public Display of Own Marked Ballot Prohibited
      ** see below
      Alabama   X     
      Alaska   X    ? 
      Arizona     X  X 
      Arkansas   X    ? 
      California     X  X 
      Colorado   X    X 
      Connecticut   X    ? 
      Delaware     X  X 
      District of Columbia   X    ? 
      Florida X      X 
      Georgia X      X 
      Hawaii     X  X 
      Idaho     X  ? 
      Illinois     X  X 
      Indiana   X    X 
      Iowa   X    X 
      Kansas   X    X 
      Kentucky X      X 
      Louisiana   X    X 
      Maine   X    X 
      Maryland   X    ? 
      Massachusetts   X    ? 
      Michigan     X  X 
      Minnesota     X  X 
      Mississippi   X    X 
      Missouri   X    X 
      Montana   X    X 
      Nebraska   X    X 
      Nevada X      X 
      New Hampshire   X    X 
      New Jersey     X  X 
      New Mexico     X  X 
      New York   X    X 
      North Carolina X      X 
      North Dakota   X     
      Ohio     X  ? 
      Oklahoma   X     
      Oregon   X    X 
      Pennsylvania   X     
      Rhode Island   X     
      South Carolina     X  X 
      South Dakota   X    X 
      Tennessee   X     
      Texas X      X 
      Utah   X    X 
      Vermont   X     
      Virginia   X    X 
      Washington   X    X 
      West Virginia X      X 
      Wisconsin     X  X 
      Wyoming   X     

      * Nearly all states prohibit conduct that intimidates voters, interferes with their exercise of the right to vote, or disrupts the voting process. Election officials may take the view that photography or videography runs afoul of these laws.

      ** "Public display of own marked ballot" refers to the practice of photographing or filming one's own vote at the time of voting and afterwards displaying the image on a publicly accessible platform like the Internet. Streaming live video of your own marked ballot may create legal problems in additional states. "?" means the law is unclear. Keep in mind that states have these laws to prevent vote buying and coercion, so you should be cautious of publicly posting your ballot.

      Subject Area: 

      State Law: Documenting Your Vote

      PLEASE NOTE: This page includes information current as of the November 2008 national elections; we are maintaining this page for archival purposes. Our guide for the November 2012 national elections is here.

      On this page, we provide a list of election laws, websites, and contact information for election officials in all 50 states and the District of Columbia. Contacting your state election officials is a great way to get information about what your state allows in terms of documenting the vote.

      You should also consult our chart summarizing the law in each state in order to determine whether your state allows recording inside polling places.  For general guidelines on photography and videography in and around polling places, see the Documenting Your Vote page in this guide.

      As Election Day approaches, we will continue to supplement the information on this page. Given the tight time schedule between now and the election, we'd love the help of our readers with this election law research.  If you've got input on this topic, please contact us.

      Select a state below to jump to its relevant information:

      Alabama Georgia Maryland New Jersey South Carolina
      Alaska Hawaii Massachusetts New Mexico South Dakota
      Arizona Idaho Michigan New York Tennessee
      Arkansas Illinois Minnesota North Carolina Texas
      California Indiana Mississippi North Dakota Utah
      Colorado Iowa Missouri Ohio Vermont
      Connecticut Kansas Montana Oklahoma Virginia
      Delaware Kentucky Nebraska Oregon Washington
      Dist. of Columbia Louisiana Nevada Pennsylvania West Virginia
      Florida Maine New Hampshire Rhode Island Wisconsin
              Wyoming

      Alabama

      Alaska

      • Contact Information:
      • Relevant Law:

        • Alaska Stat. § 15.15.290 -  Prohibiting the identification of ballots
        • Alaska Stat. § 15.56.030 - Unlawful interference with voting
        • Alaska Stat. § 15.56.060 - Unlawful interference with an election
        • Link to Alaska Statutes, Title 15 - Elections

      Arizona

      Arkansas

      • Contact Information:
      • Relevant Law:

        • Ark. Code § 7-1-103 - Miscellaneous misdemeanor offenses
        • Ark. Code § 7-1-104 - Miscellaneous felonies
        • Ark. Code § 7-5-309 - Voting procedure
        • Ark. Code § 7-5-310 - Privacy -- Assistance to disabled voters
        • Ark. Code § 7-5-521 - Arrangement of polling place
        • Link to Arkansas Code

      California

      Colorado

      Connecticut

      Delaware

      District of Columbia

      Florida

      Georgia

      Hawaii

      Idaho

      Illinois

      Indiana

      Iowa

      • Contact Information:
      • Relevant Law:

        • Iowa Code § 49.88 - Limitations on persons in booth and time for voting (Note: Subsection 1. prohibits the "use of cameras, cellular telephones, pagers, or other electronic communications devices in the voting booth")
        • Iowa Code § 39A.4 - Election misconduct in the third degree
        • Iowa Code § 39A.5 - Election misconduct in the fourth degree
        • Iowa Code § 49.84 - Marking and return of ballot
        • Link to Iowa Code (type in section 39A)

      Kansas

      Kentucky

      Louisiana

      Maine

      Maryland

      Massachusetts

      Michigan

      Minnesota

      Mississippi

      Missouri

      Montana

      Nebraska

      Nevada

      New Hampshire

      New Jersey

      New Mexico

      New York

      North Carolina

      North Dakota

      Ohio

      Oklahoma

      Oregon

      Pennsylvania

      Rhode Island

      South Carolina

      South Dakota

      Tennessee

      Texas

      • Contact Information:
      • Relevant Law:

        • Texas Elec. Code § 61.001 - Bystanders excluded
        • Texas Elec. Code § 61.003 - Electioneering and loitering near polling place prohibited
        • Texas Elec. Code § 61.006 - Unlawfully divulging vote
        • Texas Elec. Code § 61.008 - Unlawfully influencing voter
        • Texas Elec. Code § 61.014 - Use of certain devices
        • Link to Texas Statutes

      • Other Resources:

      Utah

      Vermont

      Virginia

      • Contact Information:
      • Relevant Law:

        • Va. Code § 24.2-604 - Prohibited activities at polls; notice of prohibited area; presence of representatives of parties or candidates; simulated elections; penalties; neutral observers; news media
        • Va. Code § 24.2-607 - Prohibited conduct; intimidation of voters; disturbance of election; how prevented; penalties
        • Va. Code § 24.2-1011 - Ballot not to be carried away

      • Other Resources:

        • Virginia: Documenting Your Vote - see especially page 3: "Pictures should not be taken of voters putting ballots into the ballot box (voters are guaranteed privacy of their votes)." 

      Washington

      West Virginia

      Wisconsin

      Wyoming

      • Contact Information:
      • Relevant Law:

        • Wyo. Stat. § 22-13-103 - Preservation of order; space around voting booths and machines
        • Wyo. Stat. § 22-13-106 - Marking and depositing of paper ballots
        • Wyo. Stat. § 22-13-113 - Persons permitted in voting booth; time limit
        • Wyo. Stat. §§ 22-26-112, 114 - Prohibiting creation of disturbance at polling place
        • Link to Wyoming Statutes, Title 22 - Elections

      Subject Area: 

      Arizona: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      We have not analyzed Arizona's laws regulating polling place activities yet, but we received the following comment from a site user that went through poll worker training in Arizona:

      In our pollworker training, we were told that it is illegal in AZ for any filming/photography to take place in the polling place while the polls are open.  Photos can be taken after the polls close as long as the photographer does not interfere with the poll workers as they close out the polls. We were told to ask anyone with a camera to put it out of sight - either in a purse, pocket or return it to their car.  If anyone does not wish to abide by our request, we are to call our Troubleshooter who will deal with the problem.

      For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide.

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      Arkansas: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      We have not analyzed in detail the Arkansas laws regulating polling place activities yet, but we received the following communication from a staff attorney in the Arkansas Secretary of State's office:

      No statute in Arkansas specifically prohibits cameras in polling places. The most relevant statute is 7-1-104(6) which provides:
       
      "It shall be unlawful for any person to prevent or to interfere with any qualified elector from voting at any election or to attempt to prevent or interfere with any qualified elector from voting at any election, provided that this subdivision (a)(6) shall not prohibit good faith challenges of ballots or voters according to law by candidates, authorized representatives of candidates, political parties, or ballot issues[.]"
       
      That said, many counties, at the discretion of the county's board of election commissioners, discourage presence in the polling place of people other than poll workers, electors, and other election officials due to the limited space and the realistic possibility of voters feeling less than comfortable casting their votes in front of a camera crew. It's the desire of the election officials that the polling places remain as neutral as possible so that people may vote without fear of scrutiny.

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      California: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      The California law with most immediate relevance to citizen media creators who want to document the vote is California Elections Code § 18541.  This statute makes it a crime for anyone, within 100 feet of a polling place, to "photograph, videotape, or otherwise record a voter entering or exiting a polling place" with "the intent of dissuading another person from voting." The 100-foot zone is measured from the interior voting area itself, not from the exterior of the building; so most of it will likely be inside the polling place.

      Because section 18541 requires intent to dissuade someone from voting, it does not appear to ban outright the use of cameras and recording equipment in the 100-foot zone. But it does make such activity risky.  Your intent is invisible. While you may not have any intention of dissuading anyone from voting, poll workers might see your conduct differently than you do. You could ultimately prevail before a court if the state chose to prosecute you, but you might still get kicked out of the polling place on Election Day and/or have to deal with some gigantic legal hassles.

      Other statutory provisions may also affect your ability to document your own voting experience inside the polling place. First, California Elections Code § 14221 (scroll down to the relevant section) says that voters may only be in the voting area for certain specific purposes -- "receiving, preparing, or depositing their ballots." By implication, this statute may make it unlawful to carry out other activities -- like filming or photographing -- in the voting area. Second, if you're interested in photographing or videoing your own marked ballot, two provision may impact your ability to do so. California Elections Code § 14291 (scroll down) says that "[a]fter the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents."  It's not clear whether this could apply to posting a photo or video of your ballot online after you've already cast it.  In all likelihood, no one would bother to enforce the statute in that way.  More pragmatically, California Elections Code § 14224 (scroll down) limits your time in the voting booth to 10 minutes, so don't get carried away in there. 

      Finally, you shouldn't try to interview anyone within 100 feet of the voting area, get too close to other voters with your camera (especially inside), or otherwise interfere with the voting process.  California Elections Code § 18502 makes it a crime to "in any manner interfere[] . . . with voters exercising their rights of voting at an election," and California Elections Code § 18541, mentioned above, makes it a crime to "speak to a voter on the subject of marking his or her ballot" within 100 feet of the voting area with the intent to dissuade the voter from voting. Again, the intent requirement may take your newsgathering activity outside of section 18541, but it is certainly something to be aware of.  Outside the 100-foot buffer zone, you're generally free to take photographs, film, and interview other voters (with their permission).

      If you know of any other provisions of California law that might affect your ability to document the vote, or any cases interpreting California law on these issues, please let us know. 

      If you want to contact California election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below: 

      Update: A reader provided us with a memo written by Cathy Mitchell, Chief of the Elections Division of the California Secretary of State's office, regarding the use of cameras and video equipment at polling places.  The memo says that the Secretary of State "has historically taken the position that use of cameras or video equipment at polling places is prohibited, though there may be circumstances where election officials could permit such use." The memo gives an example: "[I]f a credentialed media organization wants to photograph or film a candidate voting at a polling place, this is something you may permit, provided you ensure such activity does not interfere with voting, is not intimidating to any voters or election workers, and that the privacy of voters is not compromised."  

       

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      Colorado: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Colorado has no statutory provision that expressly prohibits the use of photographic or video equipment inside a polling place while you are voting.  But, according to a lawyer in the Colorado Secretary of State's Office, "many county clerks have specific prohibitions against video or photography equipment in the polling place." Therefore, your safest bet is to contact your county clerk to find out if there is a complete ban on photography and videography in your polling location.

      Even if your county allows you to use photographic or video equipment inside of the polling place, make sure that your activities do not interfere with the voting process or intimidate voters.  Colo. Rev. Stat. § 1-13-711 prohibits interfering with another voter inside the immediate voting area, and Colo. Rev. Stat. § 1-13-713 prohibits voter intimidation, including impeding, preventing, or interfering with the voting process.  Additionally, Colo. Rev. Stat. § 1-7-115 requires that voters "shall leave the immediate voting area as soon as voting is complete."  It is unclear whether this statute is referring to the voting booth or the entire polling place. (Here is a link to the Colorado Revised Statutes.)

      Beyond that, Colo. Rev. Stat. § 1-13-712(1) impacts your ability to photograph or video your own marked ballot and upload the image to the Internet.  It states: "no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents." The statute does not prohibit the act of photographing or videoing your marked ballot itself, but it does prohibit showing that image to anyone else. As our contact in the Secretary of State's Office wrote in an email to us: "There is no state statute that prohibits videoing or photographing one's ballot.  However, it is illegal for one to then disclose how one has voted." So, if your county allows photography/videography, you could record your own vote for your own purposes, but you would violate the law if you uploaded the video to YouTube or showed it to your friends.

      No state statute addresses the use of photographic or video equipment outside of Colorado polling places, but Colo. Rev. Stat. § 1-5-105(1) bans any "election-related activity . . . within one hundred feet of any building in which a polling place is located."  Although it is unlikely that "election-related activity" encompasses interviews for the purpose of newsgathering, we suggest that you stay at least 100 feet away from the building if you want to interview voters about the election.

      Finally, 8 Colo. Code Regs. § 1505-1, Rule 8.12 allows "media observers" to observe and photograph "early voting, election day voting and the processing and counting of provisional, mail and mail-in ballots."  However, a media observer must have "valid and current media credentials" and must have a certificate of appointment.  Therefore, this privilege is likely not available to non-traditional journalists who do not work for media organizations.

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      Florida: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Section 102.031 of the Florida Statutes is the most important provision regulating polling place activities. First, section 102.031(5) prohibits "photography . . . in the polling room." The "polling room" means "the actual room in which ballots are cast on election day and during early voting." Fla. Stat. § 97.021(26). While the law does not expressly mention video, it is a good bet that a court would interpret the statute to prohibit video inside the polling room as well. In light of this statute, you should not attempt to use a camera or recording equipment inside the polling room in Florida. If lines gather inside the polling place building but outside the polling room itself, or if poll workers check in voters outside the polling room, then you may be able to use a camera in these locations, but caution is advised.

      Second, section 102.031(4)(a) states that no person may "solicit" voters inside or within 100 feet of the entrance to a polling place. "Solicit" means "seeking or attempting to seek any vote, fact, opinion, or contribution." Fla. Stat. § 102.031(4)(b). This provision prohibits interviewing other voters inside the polling place or outside as they enter or leave, if you are standing within 100 feet of the entrance. In addition to this, section 101.51 states that a voter may not speak with anyone when in the booth or compartment to cast his or her vote, and that the voter must leave the polling room immediately after voting.

      In 2006, a federal district court ruled section 102.031(4) unconstitutional to the extent its ban on solicitation stops media organizations from engaging in exit polling within 100 feet of the entrance. See CBS Broad., Inc. v. Cobb, 470 F. Supp.2d 1365 (S.D. Fla. 2006). It is not clear how this ruling affects non-traditional media and activities other than exit polling. The Florida Department of State's Polling Place Procedures Manual states that "the media or others who are allowed to conduct exit-polling activities" are not subject to the 100-foot restriction on solicitation, but may only speak with voters after they have voted. The CMLP has been unable to determine who exactly qualifies as the "media" or how one gets to be "allowed" to conduct exit-polling activities. We suggest that you contact the Florida Division of Elections or your local board of elections for more information. As always, let us know what you find out!

      Third, section 102.031(3) limits access to the polling room to poll workers, certain election officials, and voters (along with persons in the care of a voter, and persons caring for a voter). This means that members of the media, whether traditional or non-traditional, cannot enter the polling room except to vote.

      If you are not inside or within 100 feet of the polling place, Florida law places fewer restrictions on your activities. You generally may take photographs and video and interview other voters (with permission). Despite this greater degree of freedom, you should take care not to make voters feel uncomfortable or interfere with the voting process in any way. Section 104.0515 makes it a crime to "intimidate . . . any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose." Similarly, section 104.0615 makes it a crime to "use . . . intimidation or any tactic of coercion or intimidation to induce or compel an individual" to carry out various voting-related activities. While you may not view your newsgathering activities as intimidating, poll workers and other voters might take a different view. This probably is less of a concern outisde the 100-foot zone established in section 102.031(4), but it is something to be aware of nonetheless.

      If you know of any other provisions of Florida law that might affect your ability to document the vote, or any cases interpreting Florida law on these issues, please let us know.

      If you want to contact Florida election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below:

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      Georgia: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Georgia is one of the states that explicitly prohibits photography inside polling places.  Section 21-2-413(e) of the Georgia Code states :

      No elector shall use photographic or other electronic monitoring or recording devices or cellular telephones while such elector is within the enclosed space in a polling place.

      This prohibition applies to the entire polling place, not just the voting booth.  Therefore, Georgia voters should not attempt to use a video camera, still camera, or other recording device inside a polling place.

      Additionally, section 21-2-414(e) specifically bans the use of a cell phone or other communications device once a person has been issued a ballot or is inside the voting booth.  Taken together, these two sections indicate that you would be violating the law if you attempted to record your own vote inside the voting both.

      Some media organizations in Georgia have specifically addressed the Video Your Vote project.  The Atlanta Journal-Constitution recently wrote an article that you may find helpful.  Additionally, Georgia Public Broadcasting has an insightful article that includes an interview with an election official in Georgia.  According to that official, signs warning voters about the ban on photography/videography will be posted at polling places, and poll workers are aware of the prohibition.

      Outside of the polling place, Georgia law does not expressly prohibit photography.  But, section 21-2-414(a) prohibits anyone from conducting "any exit poll or public opinion poll with voters . . . within 150 feet of the outer edge of any building within which a polling place is established."  So, if you are planning to interview voters, make sure that you are more than 150 feet away from the building.

      If you plan on interviewing other voters outside, you should also be aware of section 21-2-568(5).  This provision makes it a misdemeanor to "[d]isclose[] to anyone how another elector voted, except when required to do so in any legal proceeding."  Interpreted literally, this statute could make it illegal to ask a voter on camera how he or she voted or to otherwise publish online any information about how a specific voter voted, even if the voter tells you this information willingly and gives you permission to post the video or publish the information online. It is not clear whether Georgia election officials take the position that section 21-2-568(5) prohibits this conduct, but this is not outside the realm of possibility given how seriously they take ballot secrecy.

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      Massachusetts: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Massachusetts has no statutory provision that specifically prohibits the use of photographic or video equipment inside a polling place while you are voting.  There is, however, a Massachusetts statute that makes it a crime to "hinder[], delay[] or interfere[] with . . . a voter while on his way to [an] election, while within the guard rail, while marking his ballot or while voting or attempting to vote." Mass Gen. Laws ch. 56, § 29.  If your photographing or videotaping obstructs the voting process or interferes with other voters, you could run into problems with this provision. 

      But, if your activity is not disruptive, it appears to be legal (from the perspective of state law) for you to take photographs or record video inside a Massachusetts polling place. Local officials, however, may have the authority to prohibit or discourage photography and videography inside polling places.  For instance, the Town Clerk of Stoneham, Massachusetts told us that he intends to post signs discouraging the use of cameras inside the polls.

      Local control over this issue may explain why many Massachusetts voters were permitted to take photographs inside polling places during the 2008 primaries, while others were not.  Forty-eight photos taken inside of Massachusetts polling places were posted on the New York Times Polling Place Project at the time of writing (no longer available). On the other hand, one poster to the project reported that she was not allowed to use a camera in her polling place in Cambridge.  Different towns, and even different polling locations within those towns, could have different policies.   You should consult with local election officials at your town clerk’s office to learn what they will allow in terms of photography and videography inside the polls.

      Beyond that, Mass Gen. Laws ch. 56, § 25 potentially affects your ability to photograph or video your own marked ballot and upload the image to the Internet. In relevant part, the statutes says:

      Whoever, at a primary, caucus or election, . . . allows the marking of his ballot to be seen by any person for any purpose not authorized by law . . .  shall be punished by imprisonment for not more than six months or by a fine of not more than one hundred dollars.

      Because of the limiting clause -- "at a primary, caucus or election" -- the statute may not apply to recording an image of one's marked ballot and later publicly displaying it on the Internet.  We are not sure how election authorities will interpret this statute.  In any event, it seems relatively clear that posting an image of your own unmarked ballot is probably lawful (putting aside local rules/policies against any photography whatsoever).  Again, the New York Times Polling Place Project is instructive.  We found several photos of unmarked ballots submitted by Massachusetts voters (no longer available).

      Finally, Massachusetts law does not specifically restrict your ability to take photographs or shoot video outside of polling places. Nevertheless, you should make sure not to film anyone surreptitiously because Massachusetts has a strict wiretapping statute that authorities have interpreted as covering secret video recordings that capture sound, even those made in public locations. Getting express permission from anyone you want to interview or film is a good way of avoiding any problem.

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      Michigan: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Michigan Secretary of State Terri Lynn Land issued a press release on October 29, 2008 warning voters that Michigan law prohibits the use of video cameras, still cameras, and other recording devices inside Michigan polling places on Election Day. 

      The release mentioned the Video Your Vote project by name, saying that the project "urging [voters] to record their Election Day experiences cannot be conducted in Michigan polling places."  Land acknowledged that YouTube and PBS have cautioned voters that some states like Michigan prohibit the use of recording devices in the polls (for example, see our video), but expressed concern that "not everyone will be aware of the warning." 

      Michigan has no statute expressly prohibiting the use of cameras and recording equipment inside polling places, but the Secretary of State has taken the position since at least 2006 that voters may not use video and still cameras, including cell phones, inside the polls.  (A February 2008 election inspector training manual takes the same position.) Credentialed members of the news media are excused from the ban, although some restrictions apply to their conduct as well.

      The stated reasons for the camera ban are "to protect voters who may feel intimidated in the polling place by the presence of a camera" and to deter "those who may try to sell their vote." The press release also indicates that Michigan law prohibits displaying one's own marked ballot, relying on Mich. Comp. Laws § 168.738(2). 

      The Secretary of State's recent comments are silent on what voters can do outside the polls.  But, the press release quotes Karole White, president and chief executive officer of the Michigan Association of Broadcasters, as saying: "By keeping recording devices out of the polling place, you can still tell your story while respecting the law and the rights of other voters."  Whether she meant to imply that voters are free to film outside the polls is not entirely clear, but no Michigan statute expressly prohibits such conduct. (This may be cold comfort, seeing as no statute expressly bans filming inside either.)

      Section 168.744 of the Michigan Compiled Laws prohibits campaigning and solicitation within 100 feet of the entrance to a polling place, but nothing in its language suggests a ban on photography or videography in this zone. How it impacts your ability to conduct interviews outside is another question.  The February 2008 training manual mentioned above states that exit pollsters must remain at least 20 feet from the entrance to the building and refrain from approaching voters entering the building, which seems like a good rule of thumb for ordinary interviews as well.  In the end, you'll have to assess the situation outside for yourself and use your common sense. It may be best to hang back beyond the 100-foot zone altogether.

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      Minnesota: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Minnesota Statutes § 204C.06 regulates the activities you can engage in at a Minnesota polling place. Subsection (1) says:

      An individual shall be allowed to go to and from the polling place for the purpose of voting without unlawful interference. No one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the entrance to a polling place. The entrance to a polling place is the doorway or point of entry leading into the room or area where voting is occurring.

      If you're thinking of bringing a camera or video recorder to the polls in Minnesota to document your own voting experience or you're planning on interviewing fellow voters outside the polls, you should keep this statute in mind.  Unless a recent legal challenge to the statute brought by large media organizations succeeds, you'll want to stay clear of the 100 foot zone except when you're in the process of voting or waiting in line to vote.  So, if interviewing is your thing, definitely don't try to interview voters inside the polling place or right outside the polling place door. The statute also appears to prohibit taking photographs or shooting video within the 100 foot zone, if you're not in the process of voting (because it would require you to "stand" there).

      In addition, Section 204.06(2) of the Minnesota Statutes may prohibit you from using a cell phone camera or other recording device within the polling place itself, even if your purpose is just to document your own voting experience.  It says: 

      Except for these representatives, election judges, sergeants-at-arms, and challengers, an individual may remain inside the polling place during voting hours only while voting or registering to vote, providing proof of residence for an individual who is registering to vote, or assisting a disabled voter or a voter who is unable to read English. During voting hours no one except individuals receiving, marking, or depositing ballots shall approach within six feet of a voting booth, unless lawfully authorized to do so by an election judge.

      This section doesn't expressly prohibit the use of a camera or recording device, but it also doesn't include it in the permissible activities for which an individual may remain inside the polling place (voting, registering, providing proof of residence, or assisting a disabled voter), or those activities for which an individual may go near the voting booths (receiving, marking, or depositing ballots).

      We contacted the Minnesota Secretary of State's office regarding this question.  A state  official wrote the following in an email:

      While there is no state or federal law that strictly prohibits the use of cameras or other video equipment in the polling place to record an individual's own voting experience, the Office of the Minnesota Secretary of State strongly discourages voters from using cameras or video recorders in the polling place for the following reasons:

      Voters have a right to privacy-both as to how an individual has voted as well as whether or not an individual has voted. Either or both of these could be compromised by pictures or video. In addition, other voters' objections to being photographed could lead to disruptions within the polling place.

      We are expecting record turnout this year, which means that there may be lines and polling places may be crowded. Voters have a right to take the time they need to vote, but should not take extra time to take pictures.

      In addition, sections 204C.17 and 204C.18 of the Minnesota Statutes prohibit voters from showing their marked ballot to others.  According to the same official, taking photographs or video of your own marked ballot could violate this prohibition.

      If you want to contact Minnesota election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below:

      Update:  On October 15, 2008, a federal district court in Minnesota issued a preliminary injunction prohibiting state officials from enforcing — on November 4, 2008 — the second sentence of Minn. Stat. § 204C.06 against the plaintiff media companies who brought the lawsuit challenging the statute.  Because the injunction only applies to the exit-polling activities of the media companies that filed suit, it is not clear how this affects the ability of non-affiliated journalists to interview voters or engage in other activities within the 100-foot zone.

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      North Carolina: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Although you wouldn't guess from photographs available online (here, here, here, and here), North Carolina law places heavy restrictions on photography and videography inside polling places on Election Day.   Section 163-166.3(b) of the North Carolina General Statutes says that no person may "photograph, videotape, or otherwise record the image of any voter within the voting enclosure, except with the permission of both the voter and the chief judge of the precinct." Depending on the attitude of the chief poll worker at your precinct towards photography and videography, this amounts to a near-prohibition on using recording devices inside the "voting enclosure," which means "the room within the voting place that is used for voting."  N.C. Gen. Stat. § 163-165.

      Section 163-166.3(c) goes further.  It expressly prohibits you from photographing, videoing, or otherwise recording "the image of a voted official ballot for any purpose not otherwise permitted under law." This means that you cannot photograph or video any one else's ballot, which is something to avoid in any state regardless of specific prohibition. But this also means you cannot film or photograph your own marked ballot. Note that that section 163-166.3 prohibits using cameras and video equipment inside polling places (absent permission under subsection (b)); it does not expressly prohibit bringing such devices (including cell phones) inside with you.  

      Outside of the polling place, North Carolina law does not expressly prohibit using a camera or video recorder.  Section 163-166.4 creates a buffer zone (no less than 25 and no greater than 50 feet) around the polling place, in which it is unlawful to "hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election‑related activity." To be completely safe, you may want to take photographs or film outside the buffer zone, so as to avoid "harass[ing] others" or 'hinder[ing] access."  However, the law probably permits you to photograph and film in this zone if your activity is not disruptive or intimidating. If you want to interview other voters, you should get their permission first and do your interview outside the buffer zone.

      In April 2008, the North Carolina State Board of Elections issued a press release presenting guidelines for poll workers and media representatives regarding the use of cameras and recording equipment at polling places.  In a telephone conversation, a state official told us that these guidelines should apply equally to members of the public who wish to engage in newsgathering activities at the polls in North Carolina.  The guidelines are:

      • Members of the media have a First Amendment right to report on matters of public interest, including elections.
      • Members of the media, if they enter the buffer zone or voting enclosure, should identify themselves to the chief judge.
      • Members of the media must conduct media polls and interviews outside the buffer zone. By law, the buffer zone is set at 50 feet from the entrances of the building in which the polling location is located.
      • Precinct officials may state to media the number of persons who have voted, but no opinions should be given as to the effect of such voting numbers.
      • With the cooperation of election officials, members of the media may be briefly inside the voting enclosure to take a panoramic photograph or video of the voting place but are not permitted to use a zoom lens that could show the individual voter in the process of voting.  Outside the buffer zone, the media is free to photograph or video in a non-disruptive manner.
      • Members of the media should be positioned so that they will not interfere, obstruct, or disrupt the voting process.  They are not allowed inside the enclosure unless they are there to vote or otherwise invited in by election officials.  After the polls close the media and public are allowed inside the enclosure, but may not hinder the operations of the lection officials.
      • Members of the media should be treated with respect.
      • Election officials are to report problems with media personnel to the board of elections office.
      It is hard to say whether poll workers actually will extend to ordinary citizens some of the privileges mentioned in the guidelines, like granting permission to take a panoramic photograph or video inside the polling place.  In any event, anyone interested in taking photos, shooting video, or interviewing voters would do well to follow the prescriptive aspects of the guidelines.

      Ohio: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Ohio law does not expressly prohibit using a camera or video recorder inside a polling place while you are voting.  Section 3501.35(B) of the Ohio Revised Code states that no person other than an election official, employee, observer, or police officer may enter a polling place "except for the purpose of voting or assisting another person to vote." This could mean that any activity other than voting is prohibited, but the language does not compel this result. Photos on the New York Times Polling Place Project (here, here, and here) suggest that Ohio poll workers allowed voters to take photographs inside of polling places during the 2008 Primaries.

      Ohio law places stringent restrictions on other activities in and around the polling place.  Sections 3501.30 and 3501.35 create a 100-foot buffer zone outside the polling place entrance, which also extends to within 10 feet of any voter in line, if the line extends beyond the 100-foot zone.  Poll workers mark off the zone with small U.S. flags.  In this area, no one may "loiter, congregate, or engage in any kind of election campaigning," "hinder or delay" a voter from reaching or leaving the polling place, or "[s]olicit or in any manner attempt to influence any elector in casting [their] vote," among other things. These broad provisions appear to prohibit talking with voters while they are entering or leaving the polling place or even standing inside the zone, except when waiting in line to vote.

      Mainstream media companies have twice successfully challenged these statutes in court on First Amendment grounds.  In ABC, Inc. v. Blackwell, a federal district court in Ohio held that Ohio election officials could not enforce them against media representatives engaging in exit polling within 100 feet of a polling place. In Beacon Journal Publishing Co. v. Blackwell, the Sixth Circuit Court of Appeals held that Ohio officials could not enforce these provisions to bar media access to polling places for purposes of newsgathering.  The court ordered the Secretary of State to permit media representatives "to have reasonable access to any polling place for the purpose of news-gathering and reporting so long as [they] do not interfere with poll workers and voters as voters exercise their right to vote." 389 F.3d 683, 685 (6th Cir. 2004). In a February 2008 advisory opinion sent to county boards of elections, the Secretary of State interpreted this judicial opinion as requiring election officials to grant "representatives of the media access to polling locations," apparently including inside of the buildings.

      Unfortunately, the Secretary of State has taken a restrictive view of who qualifies as a representative of the media.  In the February 2008 advisory opinion, Jennifer Brunner advised poll workers to consider a number of factors in determining whether or not to grant access to someone for newsgathering purposes.  First among these factors is "the credentials of the media representative, and whether the purported media representative is from an accredited media source as opposed to an internet writer." So, it looks like non-traditional journalists and especially online publishers may get second-class treatment come November. 

      What does this mean?  Nothing too severe -- just that the 100-foot loitering/hindering/soliciting prohibition may still apply to many journalists and ordinary citizens who don't fit into the mainstream media mould.  If you don't qualify as a media representative, then you should not try to interview voters inside the 100-foot zone; poll workers would likely read this as "hinder[ing] or delay[ing]" voters.  On the other hand, it's not clear whether taking photographs or shooting video in an unobtrusive way inside the 100-foot zone would violate the law.  Photographing and filming doesn't "hinder or delay" voters in any meaningful sense, and it doesn't obviously fall into the categories of "solicit[ing]" voters or  "loiter[ing], congregat[ing], or engag[ing] in any kind of election campaigning." Ohio Rev. Code § 3501.30(A)(4), 3501.35(A)(1).  In addition, regardless of your status, the law permits you to take photographs, shoot video, and interview voters (with permission) outside the 100-foot zone, as long as you are not on someone's private property.

      That said, anyone engaging in newsgathering activities at the polls -- whether "media" or not, whether inside or outside the polling place -- should be careful not to interfere with, intimidate, or invade the privacy of other voters.  Paralleling the language above, section 3599.24(5) makes it a crime to "loiter in or about a registration or polling place during registration or the casting and counting of ballots so as to hinder, delay, or interfere with the conduct of the registration or election."  Section 3599.20 makes it a crime to "attempt to induce an elector to show how the elector marked the elector's ballot at an election."  So, don't get too close to other voters inside the polling place if you're using a camera.  (Incidentally, section 3599.20 also makes it a crime to "allow [your own] ballot to be seen by another" -- it is not clear whether this applies to photographing or videoing your own marked ballot and then posting it on the Internet.) 

      Finally, section 3501.33 gives election officials the authority to "enforce peace and good order" at the polls.  It charges them with keeping the entrance "open and unobstructed" and preventing "any improper practices or attempts tending to obstruct, intimidate, or interfere with an elector in registering or voting."  In support of this authority, they may order the arrest of anyone violating the laws discussed above.  As a practical matter, it may be hard to challenge the discretion election officials have to decide what interferes with "peace and good order."

      Update:  An Ohio election official informed us that election officials could prohibit the use of cameras and video equipment as a means of enforcing "peace and good order" under section 3501.33.  In addition, a reader informed us that, on Election Day, an election volunteer told him to refrain from using a camera in the polling place.  The volunteer said something about a new law prohibiting the use of cameras, but we have not been able to confirm the existence of any such law. 

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      Pennsylvania: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      While Pennsylvania has no state statute expressly prohibiting the use of cameras or video equipment inside or outside of polling places, an attorney in the Pennsylvania Department of State informs us that county boards of elections may adopt rules banning the use of cameras and video equipment inside those polling places under their authority. Anyone interested in using a camera or video recorder at the Pennsylvania polls on November 4 should therefore contact the local county board of elections to see if there is an outright prohibition in place.

      If you're interested in the legal basis for these local rules, section 2642(f) of Title 25 of Pennsylvania Statutes states that county boards of elections have the power to "make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of voting machine custodians, election officers, and electors."  Putting aside First Amendment concerns that state officials probably do not share, a rule banning photography or filming isn't "inconsistent with law" and would arguably further county election officials' duty to "keep order in the voting room."  25 Pa. Stat. § 3060(f).  Such a rule might also act as a prophylactic against violations of other election laws, discussed below.  Local control over this issue may explain why some Pennsylvania voters were permitted to take photographs inside polling places during the 2008 primaries, while others were not (photos from New York Times Polling Place Project no longer available). 

      Besides local rules banning photography and videography, a number of state statutes also restrict activities at the polls and potentially limit your ability to use cameras and video equipment in and around polling places.  As Albert Masland of the Pennsylvania Department of State put it in a recent email to YouTube, "While there is not a single [Pennsylvania] statute . . . that explicitly prohibits the use of electronic devices in the polling place, there is a web of statutes that makes it anything but clearly legal." 

      First, Pennsylvania law strives to maintain secrecy in voting, a requirement enshrined in Article VII, section 4 of the Pennsylvania Constitution.  Reflecting this concern for secrecy, section 3530 of Title 25 of the Pennsylvania Statutes restricts activities that may reveal the contents of a voter's ballot.  This provision makes it a misdemeanor for a voter to "allow his ballot or the face of the voting machine voted by him to be seen by any person with apparent intention of letting it be known how he is about to vote."  This language does not cover posting an image of one's own marked ballot on the Internet after voting, but it would likely cover streaming live video at the time of voting.  Section 3530 also prohibits "endeavor[ing] to induce any elector before depositing his ballot to show how he marks or has marked his ballot."  This makes it unlawful to photograph or film other voters in such a way that might reveal the contents of their ballots.  

      Second, Pennsylvania law protects voters from intimidation and interference, and the relevant provisions could affect your ability to use cameras or video equipment inside a polling place.  Section 3530, discussed above, also prohibits "interfer[ing] with any elector when inside the enclosed space or when marking his ballot, or preparing the voting machine for voting."  In addition, section 3547 makes it a crime to "practice intimidation or coercion" to compel someone to vote or refrain from voting, or to "impede[], prevent[], or otherwise interfere[] with the free exercise of the elective franchise by any voter."  You may not view your use of a camera or video recorder as intimidating, but other voters and election officials may well view it that way, and their discomfort is likely to be more acute if you film inside.

      Third, Pennsylvania law strictly regulates activities in and around the polling place with a view towards maintaining order. For instance, section 3060(a) of Title 25 limits the number of voters inside the polling place to ten individuals, and section 3060(b) prohibits re-entry.  Inside, section 3057 limits a voter's time in the voting compartment or booth to three minutes. Section 3060(d) prohibits anyone other than voters and certain officials from coming within 10 feet of the polling place.  Unless you are in the process of voting, you should therefore steer clear of this area for any purpose.  Outside this zone, the law permits you to film, take photographs, and interview other voters (with permission), as long as you are not on someone's private property, and subject to the prohibitions on voter intimidation and interference discussed above.

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      South Carolina: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      We have not analyzed South Carolina's laws regulating polling place activities yet, but we received the following communication from a South Carolina State Election Commission official: 

      There is no statute explicitly prohibiting cameras in the polling place.  However, there are statutes dealing with voter intimidation, ballot secrecy, and keeping order in the polling place.  We do instruct poll managers to ask voters not to use cameras, cell phones, PDAs, etc in the polling places for several reasons:

      • Out of courtesy to others.  Voters may be distracted or annoyed by other voters using these items.
      • To prevent intimidation.  Voters can be intimidated by the use of a camera in a polling place.
      • To protect the secrecy of the ballot.

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      Texas: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      Texas is one of the states that expressly prohibit the use of all recording inside of polling places.  Specifically, Tex. Elec. Code Ann. § 61.014(b) bans the use of "any mechanical or electronic means of recording images or sound within 100 feet of a voting station."   This includes video cameras, still cameras, and cell phones with recording capability.  In addition, Tex. Elec. Code Ann. § 61.014(a) prohibits the use of "any wireless communication device" in the same 100-foot zone, so even talking on your cell phone is not allowed.

      The prohibition on all photography and video extends inside the voting booth as well, so you should not attempt to record an image of your own ballot (whether marked or unmarked). A Texas election official told us that signs will be posted in polling places warning voters about the ban.  The official also stated that, despite the ban on the use of recording equipment and wireless communication devices, voters will be allowed to enter a polling place carrying a cell phone, as long as they don't use it.

      If you are interested in interviewing other voters, you should do so outside of the polling place.  Texas law makes it a crime for you to divulge information obtained in a polling place concerning another person's vote.  See Tex. Elec. Code Ann. §61.006(a).  Moreover, election officials are likely to view any attempt to conduct interviews inside as disruptive of the voting process. 

      Outside, Texas law creates a 100-foot zone from the entrance of the building, in which loitering and electioneering are prohibited.  See Tex. Elec. Code Ann. § 61.003(a).  It is not clear whether conducting interviews could be viewed as electioneering under the statute, but loitering could potentially encompass even standing in the 100-foot zone unless waiting to vote.  This could make conducting interviews and filming or taking photographs in the 100-foot zone risky.

      If you are not inside or within 100 feet of the polling place, Texas law places fewer restrictions on your activities. You generally may take photographs and video and interview other voters (with permission). Despite this greater degree of freedom, you should take care not to make voters feel uncomfortable or interfere with the voting process in any way.

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      Virginia: Documenting Your Vote (2008)

      NOTE: The information on this page was current as of the 2008 presidential elections, and might not be accurate for later elections. We are retaining this page for historical purposes only. For information related to the 2012 election, visit our revised state-by-state guide.

      If you're a Virginia voter thinking about documenting the big day, Virginia election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls.  The following provisions may be important to you:

      Prohibited Zone

      Section 24.2-604(A) of the Virginia Code creates a 40-foot "Prohibited Area" around the entrance to the polling place.  In this area, you may not (1) "loiter or congregate"; (2) engage in electioneering activities or otherwise attempt to influence any person in voting; or (3) "hinder or delay a qualified voter in entering or leaving a polling place."  Given the restrictions on loitering and hindering or delaying a voter, you should not try to interview other voters in the Prohibited Area.  Taking photographs and shooting video in this area does not appear to violate section 24.2-604, unless you hinder a voter or stand around long enough to be "loitering." Outside of this 40-foot zone, you are free to take photographs, shoot video, and interview voters (with permission), as long as you are not on someone's private property.

      Inside the Polling Room

      Section 24.2-604(D) regulates activities inside the polling room.  It does not expressly prohibit the use of cameras or video recorders by voters.  Instead, it prohibits activities similar to those outlawed in the Prohibited Area outside: (1) hindering or delaying a voter; (2) giving out campaign material; (3) soliciting or attempting to influence any person's vote; (4) hindering and delaying any officer of election; and (5) impeding the orderly conduct of the election. While the statute is not entirely clear, it looks like it permits you to take photographs or shoot video inside a Virginia polling place, so long as your conduct does not hinder or delay any other voter or otherwise interfere with the voting process.  You should also avoid using your camera in any way that might reveal the contents of another voter's marked ballot.  See Va. Code § 24.2-607 (making it a crime to "hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot").

      Photos from the New York Times Polling Place Project (no longer available) suggest that at least some Virginia poll workers allowed voters to take photographs inside of polling places during the 2008 Primaries.

      Authority of County Officials to Prohibit Photography and/or Videography

      When we spoke with a state election official, she informed us that, while there is no state statute expressly prohibiting the use of cameras or video recorders inside the polling place, county election officials may adopt rules/policies banning or discouraging the use of this equipment inside of a polling place in order to avoid interference with other voters or the process of voting.  Therefore, you should check with your local officials before Election Day if you're interested in using a camera inside the polls. 

      Photographing or Videoing Your Own Marked Ballot

      Section 24.2-1011 of the Virginia Code prohibits carrying "an official ballot or copy thereof beyond or away from the voting booth."  A state election official informed us that this provision  prohibits a voter from photographing or videoing his or her own ballot. One of our readers points out how enforcing this prohibition against photographing or videoing one's own vote might further the policy underlying the statutory language -- "If voters can carry away proof of how they voted, that could be used for vote buying."

      Representatives of the News Media

      Section 24.2-604(J) gives "representatives of the news media" express permission to "visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open." It imposes four restrictions, however: the media (1) must comply with the other restrictions found in section 24.2-604 (relating to prohibited activities in the 40-foot zone and inside the polling room); (2) must not film or photograph any person who specifically asks not to be filmed or photographed; (3) must not film or photograph a voter or a ballot in such a way that divulges how any individual voter is voting; and (4) must not film or photograph the voter list or any other voter record or material at the precinct in such a way that it divulges the name or other information concerning any individual voter. Subsection J also states that "[a]ny interviews with voters, candidates or other persons, live broadcasts, or taping of reporters' remarks, shall be conducted outside of the polling place and the prohibited area."

      The statute does not define "representatives of the news media," and the CMLP has not been able to determine whether non-traditional journalists and bloggers fit into this category.  We suggest that you contact the Virginia State Board of Elections or your local board of elections for more information.  There might be some sort of credentialing process.  Regardless of your status, any voter who brings a camera or recorder inside the polling place would do well to honor the restrictions imposed on the media. So, don't get too close to other voters or their ballots with your camera and always honor a request to stop photographing or filming. If you want to do interviews, take it outside the 40-foot zone.

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      Documenting the 2009 Presidential Inauguration

      The 2009 Presidential Inauguration promises to be a historic series of events, and millions of people will converge on Washington D.C. to observe and participate in the festivities.  Many attendees will want to document the events, whether for purposes of reporting on a blog or other website, or simply for purposes of creating a personal record of their own experiences.

      During the Inauguration, heightened security measures will be in place across Washington, D.C., particularly in the areas where official events are taking place.  These security measures, as well as tickets, permits, and credentialing requirements, will affect where you can go, what you can bring with you, and what you can do to document the Inauguration.  Your location and what events are taking place there will influence what legal and other limitations you are subject to.  The following information will help you understand and comply with security measures and other requirements while documenting the Inauguration.

      Click here for a one-page, printable summary of this guide in pamphlet form (print double-sided).

      Some Basics

      The 2009 Presidential Inauguration is actually a series of events held over four days.  The events start Sunday, January 18 with a "kick off" event at the Lincoln Memorial and conclude Wednesday, January 21 with a prayer service.  A list of official events is available on the Presidential Inaugural Committee website, and a map of Washington, D.C. displaying where the various inaugural events will take place is available on The Washington Post's website.

      Most people consider the swearing-in ceremony to be the main event.  The swearing-in will take place on Tuesday, January 20, on the steps of the Capitol Building.  Limited seating is available directly in front of the Capitol Building steps, and tickets are required to watch the swearing-in from that location.  Information about tickets to this event can be found at the website of the Joint Congressional Committee on Inaugural Ceremonies.

      The National Mall, which is located just west of the Capitol Building where the swearing-in will take place, will be open to the public during the ceremony, and large screens will be set up there to allow for viewing of the swearing-in.  Tickets are not required to watch the ceremony from the National Mall.  But, attendees will need to undergo security screenings and comply with various restrictions, discussed below.  

      The Secret Service is the lead federal agency coordinating security for these events, but the D.C. Metropolitan Police, the U.S. Capitol Police and the National Park Service will all play active roles in maintaining security at the various inaugural events.  More information about the security coordination, and what it will mean for attendees, is available on the Secret Service Presidential Inaugural webpage.

      Where Can You Go?

      While documenting the Inauguration, you can go anywhere the general public can go, but certain areas will be off-limits to you without tickets or official press credentials.

      Most inaugural events are open to the public, free of charge.  Publicly accessible areas will be clearly marked, and security personnel will be present if you have questions about where you can and cannot go.  Some events, like the ten official Inaugural Balls, will require a ticket to attend.  The Presidential Inaugural Committee handles ticketing for official events other than the swearing-in ceremony.  Please see their website for a schedule of events, and for more information about which events require tickets, and how tickets may be acquired.

      "The Swearing-In": As noted above, tickets are needed to attend the January 20 swearing-in ceremony on the Capitol Building steps.  Members of Congress and the Presidential Inaugural Committee are distributing these tickets.  The most promising way to get a ticket is to contact your local member of Congress (keep in mind that the number of requests is likely to exceed the supply of tickets).  For more information about tickets to the swearing-in ceremony, please visit the website of the Joint Congressional Committee on Inaugural Ceremonies. This Inauguration map shows the locations of the swearing-in events at the Capitol Building and National Mall, and displays where ticketed and non-ticketed attendees may go. 

      Ticketed attendees of the Capitol Building swearing-in event must enter the Capitol Grounds through the entry point designated for their particular ticket section, as indicated on the Inauguration map.  Security screening gates will open at 8:00 AM, music will begin at 9:00 AM, and the formal program will begin at 11:30 AM.  Guests who have not made it to the screening points by 11:30 AM may not be permitted to enter.  Security screening gates will also be in place at the National Mall swearing-in viewing event; it is likely that these gates will follow the same schedule.

      Inaugural Parade:  You will need tickets to sit in the bleacher seats along the January 20 Inaugural Parade route, but you do not need tickets to watch the Parade from the sidewalk.  A map of the Parade route indicates which streets will be blocked off during the event.  The Presidential Inaugural Committee will be selling tickets for the seats.

      Youth Concert: You also need tickets to attend the youth concert at the Verizon Center on January 19.  Tickets are free, and must be requested from the Presidential Inaugural Committee. 

      All other official Inauguration events, apart from the Inaugural Balls, are open to the public free of charge.

      At both ticketed and non-ticketed events, press areas will be demarcated for members of the media who have applied for and been granted official press credentials.  More information about press credentials is available at the website of the Joint Congressional Committee on Inaugural Ceremonies and the Inauguration Press Credentials page in this guide.  Note that the deadlines to apply for press credentials have already passed.

      What Can You Bring?

      You should have no problem if you bring small, handheld equipment and carry it in a small bag (but not a backpack).  At all inaugural events, attendees can bring still and video cameras.  While we found nothing written that suggested any size limitations on cameras, officials told us in telephone conversations that small, handheld equipment is the safest bet, given that security screeners have discretion to prohibit any item "that may pose a threat to the security of the event."  To the best of our knowledge, small microphones and other recording devices will be permitted as well.

      Tripods, backpacks and large bags (exceeding 8"x6"x4"), including camera bags, are not permitted.  A non-exhaustive list of additional prohibited items is available at the website of the Joint Congressional Committee on Inaugural Ceremonies and the Secret Service Presidential Inaugural webpage.

      Please note that members of the media with official press credentials will be permitted to use some equipment, such as unipods, that members of the general public are not allowed to bring.  See our Inauguration Press Credentials page for details.

      What Can You Do to Document the Inauguration?

      You can take still photographs, record video, and interview other Inauguration attendees at all inaugural events, provided that you comply with security regulations about what to bring (above) and don't create a disruption or otherwise interfere with security efforts.  There is one caveat regarding "commercial filming" on the National Mall, which we discuss below.

      In the course of your filming and photographing, try not to get too close to other attendees with your equipment.  This may help to avoid altercations, and it's also polite.  In addition, before interviewing someone, get the person's permission.  If possible, get written permission or record verbal permission on video.  Explain to the individual what you intend to do with the video (such as uploading it to the Internet) and get their permission to use their name and likeness for that purpose. 

      Commercial Filming on the National Mall

      The January 18 "kick off" event and the January 20 free public viewing of the swearing-in ceremony will take place on the National Mall, located just west of the Capitol Building.  Because the National Mall is a national park, it is subject to the National Park Service's (NPS) permit requirements.  NPS requires a permit (and fee) for "commercial filming" on national park land.  It is unlikely, however, that taking photographs or recording video at these inaugural events qualify as "commercial filming," at least so long as you document the Inauguration for personal use or for purposes of reporting on the events.

      Federal law, 16 U.S.C. § 460l-6d,  allows the NPS to require permits for "commercial filming" on national park land, including the National Mall.  An NPS agent we spoke with took a fairly aggressive view of what constitutes "commercial filming," suggesting that permits are necessary for filming and photography "whenever you are getting paid for your images."  A reasonable reading of the statute, however, does not support this understanding.

      The statute states that a permit for still photography is not required unless it takes place in a location where members of the public are not generally allowed, where additional administrative costs are likely, or where the photographer uses models or props that are not already located at the site. 16 U.S.C. § 460l-6d(c).  None of these exceptions are likely to apply to photographers documenting the inaugural events at the National Mall. 

      Videographers are more likely than still photographers to be subject to the permit requirement, but only slightly more so.  The statute does not define "commercial filming," but a Senate Report clarifies that "[p]ermits are not needed when filming for personal use, [or] for media and news events." S. Rep. No. 106-67, at 2 (1999).  This means that most people interested in taking video footage of the inaugural events on the Mall are not subject to the permit requirement. 

      The only individuals who are likely to be subject to the NPS's permit requirement are those interested in filming an advertisement, feature film, or documentary.  If you fit into these categories, you can get more information about obtaining a permit at these National Park Service webpages (here, and here).  An NPS representative told us over the telephone that it could take a couple weeks to process a permit application.  However, the application forms indicate that applications should be submitted at least four days before filming begins.

      What to Do In Case of Trouble?

      The great majority of attendees interested in documenting the Inauguration will be content to observe and participate in the official events.  For these individuals, any unpleasant confrontation with the police or other security personnel is unlikely.  Others, however, may be interested in documenting demonstrations or other acts of dissent.  These activities bring with them a greater risk of confrontation with the police.

      If you are interested in covering these types of activities, it is a good idea to avoid any appearance that you are participating in any protests or demonstrations, or engaging in disruptive behavior of any kind.  To that end, the Student Press Law Center recommends that you avoid wearing insignia, carrying signs, or joining in chants with protest participants.  You should also obey the orders of police and other security personnel.  If you believe that these officials are acting unlawfully, try to document the names and titles of those involved, and the contact information of witnesses to the incident.  If possible, photograph or videotape the misconduct.

      The Student Press Law Center also recommends that journalists bring at least $50 cash and a cell phone programmed with phone numbers of emergency personnel and colleagues or friends you can call in case you encounter any problems while at the Inauguration events.  If you run into any trouble, being able to quickly contact outside help is important.  If you know other people attending the Inauguration, plan to check in with each other periodically. 

      Several organizations maintain hotlines that you may be able to call in case of trouble:

      • The Reporters Committee for Freedom of the Press - A nonprofit organization dedicated to providing free legal assistance to journalists - (800) 336-4243.

      • Student Press Law Center - A group that advocates for student free press rights and provides free information, advice and legal assistance to students and educators.  SPLC has arranged for on-call assistance for any student journalist who is arrested or detained while covering the Inauguration - (703) 807-1904. 

      • American Civil Liberties Union - A nonprofit organization dedicated to protecting First Amendment rights to freedom of speech and freedom of the press.  The D.C. Chapter can be reached at (202) 457-0800.

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      Inauguration Press Credentials

       

      Journalists who get official press credentials gain access to otherwise restricted areas and permission to use equipment not permitted to the general public, notably "unipods" (which are one-legged stands for holding a camera).  Separate credentials are available for each event, and two organizations- the Senate Media Galleries and the Presidential Inaugural Committee - oversee the granting of these credentials depending on the event.  The deadline for submitting applications has already passed.  Some details about credentials for the different events are provided below.

      Individuals without official press credentials can still take photographs, record video, and otherwise document the inaugural events, albeit without access to special locations and use of a unipod.

      Swearing-in ceremony on the Capitol Building steps - January 20 - Ticketed event

      • The Senate Media Galleries handles all media credentialing for this event.

      • Deadline to apply: December 15. More information about these credentials is available on the website of the Joint Congressional Committee on Inaugural Ceremonies.

      • Who should apply:  These credentials are geared towards professional journalists.   Published criteria state that "persons engaged in other occupations, whose chief attention is not given to or more than one-half of their earned income is not derived from the gathering or reporting of news . . . shall not be entitled to admission."

      • What credentials entail:  Members of the media who apply for and are granted media credentials are given access to the reserved press area at this event.  They are also permitted to use equipment that is prohibited for members of the general public, such as unipods.

      • What it means if you do not have credentials:  If you do not have official press credentials for this event, you may only attend if you have a ticket and comply with the security requirements.  For information on these requirements, see the Documenting the 2009 Presidential Inauguration page in this guide.

      All other official events - January 18 - 21, 2009

      • A list of events, and information about whether tickets are required to attend, is available from the Presidential Inaugural Committee, which handles media credentialing for these events.

      • Deadline to apply: December 22, late submissions not accepted.

      • Who should apply:  The Presidential Inaugural Committee's website does not state who can or should apply for press credentials.  We were told via telephone that only those who are associated with an established media company (e.g., CNN, Associated Press) should apply for press credentials.

      • What credentials entail:  Members of the media who apply for and are granted media credentials are given access to the reserved press areas at these events.  They are also permitted to use equipment that is prohibited for members of the general public, such as unipods.

      • What it means if you do not have credentials:  If you do not have official press credentials for these events, you can still attend them because they are open to the public.  You must, however, comply with the security requirements comply with the security requirements.  For more information on these requirements, see the Documenting the 2009 Presidential Inauguration page in this guide.

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      Protecting Sources and Source Material

      The ability to protect your sources and newsgathering materials is often critical to your being able to gather information and inform the public. In the course of assembling information for an article, post, podcast, or other work, you may obtain information that, for a number of reasons, you do not wish to make available to the public.

      Ironically, confidentiality may be an essential part of bringing information to the public's attention because as a publisher, you may only be able to gather the information if you promise not to reveal the information's source. For example, reporting that involves the criticism of government and exposure of government and corporate wrongdoing often depends on the use of confidential sources.

      Fortunately, the law provides tools with which to protect the information you obtain. Absent some kind of legal protection, a journalist or other individual gathering information for dissemination to the public may be compelled to identify his or her sources and produce documents in court and other governmental proceedings. Journalists and other citizens reporting the news have been asserting their right to keep their sources and materials confidential for longer than the United States has been an independent nation. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources.

      These legal protections are vital to the free flow of information in society. If reporters (and we use that term broadly here) are seen merely as an investigative arm of the government, individuals with information of great public concern may be afraid to share that information. As a result, the public may be deprived of information of critical importance to the proper functioning of our society and our democratic form of government.

      The following sections address the legal challenges facing online publishers in maintaining the confidentiality of sources and source material and discusses the federal and state laws that may protect them from forced disclosure of this information.

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      Promising Confidentiality to Your Sources

      What are the legal consequences if you promise confidentiality to a source? While your use of confidential sources should generally be the exception and not the rule (it’s almost always better to get something on the record and for attribution if you can), there are a number of reasons you might wish to promise a source confidentiality. For instance, some sources may only be willing to share information with you if you promise them confidentiality because they fear retaliation or other adverse consequences. In other situations, you may wish to promise your source confidentiality because in some places such a promise makes it harder for someone to require you to disclose the identity of your source in court.

      Yet by promising your source confidentiality, you may incur legal obligations to your source. Keep in mind that promising a source confidentiality may make it difficult for you to change your mind later. For instance, you might decide that the source's identity is newsworthy and wish to report about it. While the law varies from state to state, some general guidance on this issue is possible.

      First, consider carefully whether to promise your sources confidentiality. There are several potential benefits and drawbacks of promising confidentiality that you should consider:

      Benefits of promising confidentiality:

      • Your source might be willing to give you more information.

      • In some states, promising your source confidentiality before you receive information will strengthen your ability to resist legal demands for your source's identity. See your state under State Law: Legal Protections for Sources and Source Material to determine if that is the case for you.

      Drawbacks of promising confidentiality:

      • By promising confidentiality to your source, you may be legally bound to keep the promise. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you do so. To learn if your your promise would create a legal obligation to your source, and to learn the consequences of such an obligation, see the section below on how a legal obligation arises for more information.

      • By promising confidentiality, your readers/viewers/listeners will have less information about your source and will not be able to assess your source's credibility on their own. This can also have an impact on the overall credibility or persuasiveness of your work.

      In sum, promising confidentiality can provide benefits to you and your source, but you should only offer it after you have carefully weighed the benefits and drawbacks. If your source demands confidentiality, make sure you intend to maintain confidentiality if you agree. Also, no matter what you decide, it is a good idea to be clear with your source about what he or she should expect with respect to confidentiality. Agree with your source on exactly when and to whom, if anyone, you can reveal your source's identity.

      Second, consider whether you will be able to keep the information secret. Once you have obtained information from a confidential source, you will need to keep the source's identity secret. Be careful of revealing any unpublished news you have received if you do not want the information to be public. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. Resist the temptation. There are a number of negative consequences that can occur if you reveal the identity of confidential sources or unpublished news to anyone.

      In a number of states, if you reveal your source's identity to anyone, you can lose your ability to protect that information later. This means that even if you could have protected the information from a legal demand, you no longer will be able to do so. Even if you are still able to protect your information from a legal demand for it, the person who knows the information might not be able to do so. You might have a "journalistic privilege" to protect your sources' identities and unpublished information from a legal demand, but your friends and relatives and co-workers might not have such special protection. If a party to a lawsuit discovers that someone else has the information they want, they might ask a judge to require that person to reveal the information.

      Beyond legal considerations, as a practical matter, the more people who know the information, the more likely it is to be revealed. People are not always good at keeping secrets, and you may not wish for the information to be revealed. If others do not know the identity of a source or a tidbit of unpublished news, they might not even realize it exists, so they may not ever know to seek it from you.

      How a Legal Obligation Arises

      In general, by promising confidentiality to a source you might develop a legal obligation to your source in two ways, either by contract or through detrimental reliance. If you do not have a legal obligation to your source, typically he or she will not have any legal recourse against you if you break your promise of confidentiality.

      • By Contract

      First, you might have a legal obligation to your source if you have formed a contract with your source. Forming a contract does not require a formal, signed paper document. Contracts also do not require any "magic words." To the contrary, any exchange of promises can potentially represent a binding agreement.

      Contracts can only be formed if you promise to do something (or refrain from doing something) in exchange for the other person promising to do something (or not do something). A one-way promise, with nothing expected in return, does not form a contract. Thus, an important question in determining whether you formed a contract when you promised a source confidentiality is: Was there an understanding that you would receive something in return? If you promised your source confidentiality with the understanding that you would receive information in return, that may represent a contract. On the other hand, if you promised the source confidentiality freely, with no promise of anything in return, you probably have not formed a contract.

      Whether you and your source made an exchange of promises that constitutes a contract is based on a how a "reasonable person" would have interpreted your behavior. It is not based on how you or your source subjectively perceived the situation.

      Even if you exchanged promises in a way that could represent a contract, some courts will hold that contracts formed based on a newsgatherer's promise of confidentiality are not valid. In other words, in some states, if a court deems you a newsgatherer, it will not punish you for revealing the identity of a confidential source to the public. Courts in these states hold that free speech interests, such as those embodied in the First Amendment of the U.S. Constitution, prevent them from punishing you.

      • By Detrimental Reliance

      "Detrimental reliance" (also called "promissory estoppel") is a fancy legal term that essentially means relying on a promise in a costly way. It is a type of promise that is legally binding in many states. It applies when you make a promise to someone that you expect that person to act on, and then that person relies on that promise in a way that could hurt that person if you break your word. The key difference between "detrimental reliance" and a contract is that "detrimental reliance" does not require an exchange of promises -- it only requires a one-way promise, and the the person who has been promised something relying on that promise.

      An example may help "detrimental reliance" seem more understandable. Imagine that a boss tells his employee that she can have a day off so she can visit her far-away relative, as she had been saying that she wanted to for a long time. The employee, relying on her boss's promise, buys an airplane ticket to see the relative. At this point, the employee may be able to enforce the boss's promise under the doctrine of "detrimental reliance." By promising his employee the day off, the boss knew that his employee would go to visit her relative. The boss knew that his employee would have to spend money to buy a plane ticket. The employee, by buying the plane ticket, relied to her expense on the boss's promise. If the boss were to break his word, it would cause her financial injury.

      Here's how "detrimental reliance" can come up for you: Imagine that you promise a source confidentiality. You expect that by making this promise, your source will reveal confidential information to you. As you expect, the source reveals confidential information. You then publish the confidential information you received from your source. Later, you want to reveal your source's identity to the public. The source will say the doctrine of "detrimental reliance" binds you because the source only gave you the information because you promised confidentiality. This is similar to what happened in the U.S. Supreme Court case of Cohen v. Cowles Media Co., 501 U.S. 663(1991), in which the Supreme Court held that it was okay to punish two reporters under the doctrine of "detrimental reliance" for breaking their promises.

      What Can Happen to You if You Break Your Word?

      Remember, your source can only take legal action against you if you promise your source confidentiality in such a way as to create a legally binding obligation. The two ways this can happen are detailed above.

      Your source cannot prevent you from breaking a promise of confidentiality ahead of time. The First Amendment typically prevents any prior restraints against speaking. Your source also cannot take legal action against you if you are legally obligated to reveal your source's identity. For example, you might be legally obligated to reveal the information as the result of a valid court order. However, if you break your word of your own accord, your source can sue you after the fact.

      If your source sues you for breaking your word and a court finds you had a legal obligation to keep your word, you may be ordered to pay your source compensatory damages. Generally, this means you must pay money to make up for anything your source has lost because you broke your word. Sometimes, this will not be much, but other times it could be a lot of money. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the reporters had to pay $200,000 to their source.

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      Legal Challenges to Protecting Confidentiality and Source Material

      There are several ways that others can attempt to acquire information about your newsgathering activities, including through a subpoena, search warrant, and discovery order in litigation. The most common of these approaches is through a subpoena. This section will detail when these methods may be used and their effects.

      Subpoenas

      A subpoena is a command to appear before a court. A subpoena can either require you to appear in person to provide testimony or information, or it can require you to provide specified documents, records, or other material. You can be subpoenaed in cases where you might not have realized you have relevant information.

      Subpoenas are typically issued in the early stages of a case, when parties are trying to learn information relevant to their cases. In order to allow the parties in litigation to gather enough information, American judges tend to be generous in granting subpoenas.

      If you receive a subpoena, you must think carefully about how to respond. You should not ignore it, since you can be punished for doing so. Refer to the section in this guide on Responding to Subpoenas for information on how to respond to a subpoena. If the subpoena relates to information you collected as part of your newsgathering or publishing activities, you might be able to defeat the subpoena and avoid having to appear or disclose information, see the Legal Protections for Sources and Source Material section for more information.

      Search Warrants

      Search warrants are orders by judges allowing police or other law-enforcement to search a location and take evidence. Search warrants are used in criminal cases. In most situations, the Fourth Amendment to the U.S. Constitution requires police to obtain a search warrant before they can search private premises. To obtain a warrant, police must demonstrate to a judge that they have "probable cause" to believe that the search will yield evidence of a crime.

      If police do not have a warrant and wish to conduct a search of your premises, you may say no. For most people, if police have a valid search warrant, the search they conduct pursuant to the warrant is legal.

      If you receive a search warrant that relates to information you collected as part of your newsgathering or publishing activities, you may be able to get it withdrawn. The federal Privacy Protection Act prohibits the issuance of a search warrant directed at documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. Please see the Legal Protections for Sources and Source Material section for details.

      Discovery Orders

      When you are a party to litigation, the opposing parties may use discovery orders to obtain information from you. Discovery orders can take a number of forms. For instance, they may require you to provide documents, or they may require you to answer questions in a deposition. The purpose of discovery orders is to allow all parties to have information so that they can pursue their arguments in court.

      In federal courts in the U.S., and in most state courts, judges allow parties to conduct broad discovery -- they are generally willing to allow parties to get the information they request. Discovery orders are legally binding, and you can be punished for ignoring them. If you wish to challenge a discovery order that requests something from you, you must do so by notifying the judge who issued the order. The exact reasons you can challenge an order vary by court and jurisdiction. In general, you might be able to object that the information requested is not relevant to the case for which it was requested, that too much information was requested and only some is relevant to the case, that the request is unduly burdensome, or that you should not have to reveal newsgathering information. To determine whether you can avoid revealing your newsgathering information and sources, see Legal Protections for Sources and Source Material.

      Keep in mind, however, that if you are a defendant in a lawsuit, your newsgathering materials and source information may be relevant -- or even essential -- to your defense. For example, if you relied on a confidential source for a statement that the plaintiff claims is defamatory, you may be in a position where you need to identify your source in order to show that it was reasonable for you to rely on that source for the information you published. If you refuse to provide the requested information, you may lose your ability to fully defend yourself.

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      Legal Protections for Sources and Source Material

      The use of subpoenas, search warrants, and discovery ordersin litigation that seek to acquire information about your confidentialsources or source material can place a substantial burden on yournewsgathering and online publishing activities, as well as on the freeflow of information in society.

      Fortunately, you are not powerless when faced with a demandfor information obtained in the course of your newsgatheringactivities. Legal protections exist to protect those who gather newsfrom having to reveal the identity of their confidential sources andfrom having to disclose unpublished information collected in the courseof newsgathering. This section looks at the laws that provideprotection and outlines the character and scope of that protection.Keep in mind that the legal protections available to you differmarkedly from state to state. For information on state shield laws andother legal protections for sources and source material in the fifteenmost populous U.S. states and the District of Columbia, please see the state-specific pages.

      There are a number of different sources of legal protection forsources and source material. These include state shield laws, federaland state constitutional provisions, federal statutes, and common lawprivileges. In some geographical locations, only one or two sources ofprotection are available. In others, you may be able to take advantageof several sources of legal protection.

      State Legislative Protections

      More than thirty U.S. states currently have shield laws that providesome level of protection for journalists and others who gatherinformation for dissemination to the public. The first state shield lawwas enacted in Maryland on April 2, 1896, in response to theimprisonment of a Baltimore Sun reporter for refusing to reveala confidential source to a grand jury. Over the years, other stateshave followed suit, recognizing the importance of a reporter's shieldfor supporting the public's "right to know."

      The scope of shield law protection varies from state to state.The primary differences revolve around the following three questions:

      • What kind of information does the shield law protect? Some state shield laws only protect the identity of a confidential source, while others protect the identity of a source whether or not you have promised the source confidentiality. In other states, the law protects not only the identity of a source, but also unpublished information collected during newsgathering, such as information provided by a source, a reporter's unpublished notes, outtakes, and work product. Even among this group, there are some differences about exactly what information the shield law protects.

      • Who is entitled to the protection of the shield law? Some state shield laws limit their application to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Other states expressly exclude broadcast and electronic media from coverage. Yet others offer the privilege to a larger group of people who publish information, such as freelancers, authors, electronic publishers, and educators. This question is of critical importance to citizen media sites and online publishers of all kinds. One important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), extended the coverage of California's shield law to online news sites, despite language in the shield law suggesting that only reporters publishing in traditional media were covered. See the California Protections for Sources and Source Material page for details. This area of law, while currently uncertain, is sure to develop significantly in coming years.

      • Assuming the shield law applies, how strong is its protection? Some states provide those individuals covered by their shield laws with an "absolute" privilege against revealing sources and source material (or just sources, as the case may be). This means that a court or other legal body may not force that individual to reveal the information in question under any circumstances. In other states, shield laws give covered individuals only a "qualified" privilege against revealing sources and source material (again, the precise information covered depends on the state). While the exact standards vary state-to-state, courts applying a qualified privilege generally require that the individual seeking covered information demonstrate that (1) the desired information is central to mounting a claim or defense in a lawsuit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of the parties' interests favors disclosure.

      For a detailed examination of state shield laws, see the State Law: Legal Protections for Confidential Sources and Source Material section of this guide.

      Federal Legislative Protection

      Shield Law

      There presently is no federal shield law. In its last session,Congress considered but did not pass a proposed federal shield law. Themost recent version of the bill, H.R. 2102,excluded from coverage those who do not receive "a substantial portionof [their] livelihood" or "substantial financial gain" from theirnewsgathering and publishing activities. This language would probablyexclude many non-traditional journalists and amateur online publishers,as well as freelance journalists who rely on other work to supplementtheir incomes. In any event, the Congress has not enacted the bill intolaw, so future revisions are possible.

      Privacy Protection Act

      An important federal law may protect you with regard to search warrants.Subject to certain exceptions, the Privacy Protection Act (PPA) makesit "unlawful for a government officer or employee, in connection withthe investigation or prosecution of a criminal offense, to search foror seize" work product and documentary materials "possessed by a personin connection with a purpose to disseminate to the public a newspaper,book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa(a),(b). If the PPA applies to you, it protects you regardless of what state you live in.

      • What kind of information is covered by the Privacy Protection Act?

      The PPA covers a publisher's "work product" and "documentary materials."

      "Work product" is defined as materials: (1) "prepared, produced,authored, or created, whether by the person in possession of thematerials or by any other person"; (2) "possessed for the purposes ofcommunicating such materials to the public"; and(3) "include mental impressions, conclusions, opinions, or theories ofthe person who prepared, produced, authored, or created such material."42 U.S.C. § 2000aa-7(b)(1).Work product thus includes things like your notes, drafts, andouttakes. Work product does not include contraband, "fruits" of crime,or materials intended to be or actually used in the commission of acrime.

      "Documentary materials" are also defined broadly as "materialsupon which information is recorded, and includes, but is not limitedto, written or printed materials, photographs, motion picture films,negatives, video tapes, audio tapes, and other mechanically,magnetically or electronically recorded cards, tapes, or discs." Id. §2000aa-7(a). As with work product, the definition does not includecontraband, "fruits" of crime, or materials intended to be or actuallyused in the commission of a crime.

      • Who is covered?

      While the law on this point is not yet clear, the language ofthe PPA -- reaching "a person in connection with a purpose todisseminate to the public a newspaper, book, broadcast, or other similar form of public communication" -- suggests that it may cover online publishers.

      • How strong is the protection?

      The PPA does not function like a shield law, which allows areporter to refuse to comply with a subpoena or other discovery order.Instead, the PPA allows you to file a civil lawsuit for damages afterthe search and/or seizure takes place, if you believe it violated thelaw.

      There are a number of exceptions to the PPA. Most importantly,government officials can legally carry out a search and/or seizureotherwise covered by the PPA if there is "probable cause" to believethat the reporter (or other publisher) has evidence linking him or herto a crime. 42 U.S.C. § 2000aa(b)(1).The government cannot invoke this exception, however, if the only"offense to which the materials relate consists of the receipt,possession, communication, or withholding of such materials or theinformation contained therein," unless the materials relate to thenational defense or classified information. Id. There is also anexception when authorities have reason to believe that death or seriousinjury will result if the search is delayed. Id. § 2000aa(b)(2).

      For more information on the Privacy Protection Act and afantastic practical guide to dealing with newsroom searches, see theStudent Press Law Center's Student Media Guide to the Privacy Protection Act.

      Constitutional Protections

      Federal Constitution

      A number of state and federal courts have found that the FreeSpeech Clause of the First Amendment of the U.S. Constitution creates a"reporter's privilege" against having to disclose the identity ofconfidential sources and/or turning over unpublished newsgatheringmaterials. While the law is not settled, online publishers may be ableto take advantage of this reporter's privilege. The constitutionalreporter's privilege is not, however, universally recognized.Furthermore, even when recognized, it only provides a "qualifiedprivilege," meaning that the person seeking information can overcome itwith a strong showing of need.

      Courts that recognize a privilege based on the First Amendment often make reference to the U.S. Supreme Court's decision in Branzburg v. Hayes,408 U.S. 665 (1972). Branzburg is the only case in which the U.S.Supreme Court has addressed the federal reporter's privilege.Unfortunately, it is also a famously confusing case. The majorityopinion, which typically is the legally controlling opinion, held thatthe First Amendment does not provide a reporter with a privilege fromtestifying before a grand jury about information obtained and eventswitnessed in the course of researching a story. However, Justice Powellwrote a concurring opinion in which he stated that demands forinformation from journalists should "be judged on [their] facts by thestriking of a proper balance between freedom of the press and theobligation of all citizens to give relevant testimony." Because JusticePowell was a necessary fifth vote to form a majority, many courts treathis opinion as the controlling opinion. These courts frequently readhis opinion as calling for a qualified privilege for reporters underthe First Amendment.

      Courts in different states and federal circuits have differentviews about the character and scope of the federal reporter'sprivilege. For more detailed information on the contours of thisprivilege, see the state pages.

      State Constitutions

      Quite a few state courts have found that a privilege exists forjournalists under their respective state constitutions. Some states,like California,have explicit constitutional privileges for journalists, similar inform to a shield law. In other states, courts have derived a privilegefrom general state constitutional provisions, similar to the FirstAmendment.

      For more information on state constitutional privileges, see the the state pages.Keep in mind that, even when a state recognizes a state constitutionalprivilege, its exact character and scope is often uncertain.

      Common Law Privileges

      Some state and federal courts have created privileges fornewsgatherers under the common law (i.e., judge-made law). Common-lawprotections for confidential sources and source material differ greatlyin their scope and character. As with state and federal constitutionalprivileges, courts develop the common law of privilege on acase-by-case basis, and frequently the law is fraught with ambiguitiesand undefined "grey zones." For more information on common lawprivileges for confidential sources and source material, see the the state pages.

       

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      Practical Tips for Protecting Your Sources and Source Material

      When you gather and publish information, it may be important to you to protect the confidentiality of your sources or source material. You may not wish for your sources' identities to be revealed, and you may not want all of the information you have gathered to be public. Here are some practical tips for you to consider when seeking to protect your newsgathering information:

      • Be judicious about promising confidentiality: Promising confidentiality to your sources can provide benefits to you and your sources, but you should only offer it after you have carefully weighed the benefits and drawbacks. Review the section of this guide on Promising Confidentiality to Your Sources before making a decision. If your source demands confidentiality and your reporting requires the source, make sure you intend to maintain confidentiality if you agree. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you break your promise.

      • Keep secrets secret: Once you have obtained information from a confidential source, keep the source's identity secret.  It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. As a practical matter, the more people who know the information, the more likely it is to be revealed. Moreover, if you reveal some information about your source's identity, you may be precluded from protecting the information in the future.

      • Research whether you can assert a "journalistic privilege" to protect your sources and unpublished information: Many states offer protection for "journalists" who receive subpoenas requesting this information. These privileges arise from a number of different sources of law, including shield laws passed by state legislatures, the U.S. Constitution and state constitutions, and the common law. Check the Legal Protections for Sources and Source Material section of this guide before revealing any information about your sources.

      • Consider where you publish your work: Where you publish your work can have an impact on your ability to protect your sources and newsgathering information. For instance, in some states you can only invoke the privilege to protect your sources if you publish in traditional print or broadcast media. In other states, you need only publish through an entity that regularly distributes news. See the Legal Protections for Sources and Source Material section of this guide for more information.

       

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      State Law: Legal Protections for Sources and Source Material

      Different states have different laws that may protect your confidential sources and source material. Different states base their protections on different sources of law. Who is protected, what information is protected, and the strength of protection varies greatly across the states.

      The state-specific sections below provide information about legal protections in the fifteen most populous U.S. states and the District of Columbia. These sections also include information about the law applied by federal courts in that state. For a general overview of possible protections, see the section on Legal Protections for Sources and Source Material in this guide.

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      Arizona Protections for Sources and Source Material

      Note: This page covers information specific to Arizona. See the section on Protecting Sources and Source Material for more general information.

      There are four potential legal bases for protecting your sources and source material in Arizona: the Arizona Press Shield Law, the Arizona Media Subpoena Law, the United States Constitution, and the federal Privacy Protection Act.

      The Arizona Press Shield Law protects the identity of confidential sources of information obtained during the newsgathering process. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.

      The Arizona Media Subpoena Law sets forth six requirements that must be met before a party can subpoena a journalist to testify or produce documentary evidence relating to her newsgathering activities in a civil or criminal trial. If the requirements of the Media Subpoena Law are not met, the journalist cannot be compelled to testify about matters related to her newsgathering activities or produce documentary evidence, regardless of whether that testimony or evidence involves confidential sources or not.

      The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in Arizona recognize a qualified reporter’s privilege based on the First Amendment to the U.S. Constitution. The reporter’s privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Arizona has no other sources of law that offer you protection from disclosing information.

      Arizona Press Shield Law

      Source and Text

      The Arizona Press Shield Law is codified at A.R.S. § 12-2237. It provides:

      A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.
      Who is Protected?

      The Court of Appeals of Arizona has stated that Arizona’s Press Shield Law protects “members of the media.” Matera v. Superior Court, 170 Ariz. 446, 449 (Ariz. Ct. App. 1992). The court of appeals has expressly declined to expand the privilege beyond “‘journalists in the traditional sense of that term’” to “anyone who is engaged in gathering and publishing information which is of topical and widespread interest.” Id. at 450 (quoting von Bulow v. von Bulow, 811 F.2d 136, 143 (2d Cir. 1987)). We are not aware of any decisions applying the Press Shield Law in an online context. The limitation of the statute to sources of information obtained for publication in a newspaper or on radio or TV makes application of the statute to online publications unlikely, unless the information is intended for publication in both online and traditional media. Nevertheless, whether journalists publishing news in online outlets would be considered “journalists in the traditional sense of that term” under the law is technically an open question.

      What Information is Protected?

      The Arizona Press Shield Law protects journalists “from being compelled to testify about or otherwise disclose confidential sources utilized during the newsgathering process.” Matera, 170 Ariz. at 449. This protection is absolute.

      The Court of Appeals of Arizona has specified that the Press Shield Law “does not protect all activities of would-be publishers or newsgatherers, nor does it protect any and all information gathered.” Id. at 449-50. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.

      The Press Shield Law applies broadly, “in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere.” A.R.S. § 12-2237. By its terms, the statute does not distinguish between civil or criminal trials, grand jury proceedings, or other legal proceedings.

      Waiver of the Press Shield Law

      Arizona courts have not definitely determined whether the protections of the Press Shield Law can be waived. However, in one case, Flores v. Cooper Tire and Rubber Co., 218 Ariz. 52 (2008), the Court of Appeals of Arizona assumed without deciding that the protections of the Press Shield Law can be waived and elaborated on what may constitute a waiver.

      The Court stated that situations in which the Press Shield Law may be waived will be construed narrowly. Id. at 59. If a media entity seeks to use the Press Shield Law as “both a sword and shield,” Arizona courts may find the privilege waived. Id. at 58. In other words, if a party seeks both affirmative relief and attempts to use the Press Shield Law to withhold privileged information, the privilege may be waived. Id. The Court has also specified, however, that seeking a declaratory judgment, as opposed to damages or an injunction, will not cause a waiver of the Press Shield Law protections. Id. In short, the Court has stated that waiver may occur “‘when the conduct . . . places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege.’” Id. (quoting Throop v. E.F. Young & Co., 94 Ariz. 146, 158 (1963)).

      The Arizona Court of Appeals has also held that the disclosure of partial information will not waive the privilege as to all information gathered on the same subject matter. Id. at 59. For example, identifying a confidential source as a “whistle blower” does not waive the privilege as to the actual identity of the source. Id.

      Arizona Media Subpoena Law

      Source and Text

      The Arizona Media Subpoena Law is codified at A.R.S. § 12-2214. It provides:

      1. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:
        1. Each item of documentary and evidentiary information sought from the person subpoenaed.
        2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.
        3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information.
        4. That the information sought is relevant and material to the affiant’s cause of action or defense.
        5. That the information sought is not protected by any lawful privilege.
        6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.
      2. A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.
      3. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court. After the hearing the command of the subpoena shall be carried out in accordance with the order of the court.
      4. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.

      Who is Protected?

      The Media Subpoena Law applies to a “person engaged in the gathering, reporting, writing, editing, publishing or broadcasting news to the public.” A.R.S. § 12-2214.

      The Court of Appeals of Arizona has held that the Media Subpoena Law applies only to those people “who gather and disseminate the news on an ongoing basis as part of the organized, traditional, mass media.” Matera, 170 Ariz. at 448. Specifically, the Court has held that it does not apply to authors of non fiction books, including non fiction books about newsworthy recent events. Id. at 447, 448.

      What is Protected?

      The Media Subpoena Law is not a shield law. The statute “was not designed to protect the information collected, but rather was designed to aid a specific class of persons – members of the media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants.” Matera, 170 Ariz. at 448.

      As a result, the statute is not an absolute bar on subpoenaing journalists to testify or about matters related to their news gathering or requiring them to provide news gathering product, such as videotape or pictures. Instead, the person issuing the subpoena must fulfill several requirements. If those requirements are met, the Media Subpoena Law will not protect the journalist from testifying. However, if the requirements are not met, the subpoena will have no effect and cannot be used to compel a journalist to testify or produce documentary evidence for the court. A.R.S. § 12-2214(B).

      How are the Requirements of the Media Subpoena Law Met?

      The statute requires that the party seeking the information (i.e., the party requesting the subpoena) fulfill six requirements before the subpoena will be issued. He must show:

      1. what information he seeks;
      2. that he has attempted to obtain the information from other sources and has not been able to do so;
      3. the identity of the other sources from which he has attempted to obtain the information;
      4. that the information is relevant and material;
      5. that the information is not protected by any privilege; and
      6. that the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public. A.R.S. § 12-2214(A)(1)-(6).

      The initial burden is on the party seeking the information to show compliance with parts (A)(1) through (A)(6) of the Media Subpoena Law. Bartlett v. Superior Ct. in and for Pima Cty., 150 Ariz. 178, 183 (1986). However, he does not need to show a “compelling need” or that he “cannot make his case without the information.” Id. Instead, he must “identify in reasonable detail in his affidavit the information sought, the efforts to obtain it and from what sources.” Id. To meet the requirements of (A)(4) through (A)(6), all that is required is the “affiant’s avowal, unless controverted.” Id.

      If the party resisting the subpoena (i.e., the journalist) disputes the affidavit submitted by the party requesting the subpoena, the court must hold a hearing and determine whether the required showing has been made. Id. Until the hearing is held and the court enters an order, enforcement of the subpoena will be postponed. A.R.S. § 12-2214(C).

      After the party seeking the information has complied with the six requirements, “the burden shifts to the party opposing the subpoena to controvert the allegations of the affidavit and to set forth the bases therefore.” Id. The party opposing the subpoena must provide specific bases for controverting the affidavit. For example, if he wishes to argue that the information sought could be obtained elsewhere, he must set forth “the manner in which previous efforts were deficient or other specific sources from which the information is available.” Id.

      If the party opposing the subpoena alleges generally that the information is available from other sources, the court is not necessarily required to examine and review every other possible source of the information. Instead, if the party seeking the information avows that he has examined the other possible sources of information and found that the information is not available from those sources, this avowal will be sufficient. Id. In other words, the court will accept the word of the party seeking the information. If the party opposing the subpoena believes the information is in fact available from other sources, it is up to that party to review the other sources and “point out to the court where equivalent information could be found.” Id. Thus, while the court will not independently search the record to determine if information is available from other sources, it will review specific evidence pointed to by the party opposing the subpoena to determine if the information is available elsewhere.

      For more detailed information about the Arizona Press Shield Law and Media Subpoena Law, see the Reporters Committee for Freedom of the Press’s Privilege Compendium: Arizona.

      Federal Constitutional Reporter's Privilege in State Courts

      The Court of Appeals of Arizona has recognized the existence of the federal constitutional privilege created by Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny. Matera, 170 Ariz. at 449. The Court has stated that the federal constitutional reporter’s privilege as created by Branzburg is limited to information regarding confidential sources or cases that “would seriously interfere with the news gathering and editorial process.” Bartlett, 150 Ariz. at 182.

      The Court has also stated that the federal constitutional reporter’s privilege is the same as the privilege created by the Arizona Press Shield Law. According to the Court of Appeals of Arizona, “under Branzburg[,] the states and the federal courts have the freedom to create, expand, or restrict protection for publishers as they see fit.” Matera, 170 Ariz. at 449. Noting that Arizona’s Press Shield Law was enacted well before Branzburg, the Court has held that “[t]he constitutional privilege afforded to reporters in Arizona is codified at A.R.S. § 12-2237,” the Press Shield Law. Id. Accordingly, it is unlikely that you will be able to use the constitutional reporter's privilege as protection in the Arizona state courts if you are not covered by the Press Shield Law.

      Federal Constitutional Reporter's Privilege in Federal Courts

      Federal courts in the Ninth Circuit, which encompasses Arizona, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

      The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

      For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see Legal Protections for Sources and Source Material.

       

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      California Protections for Sources and Source Material

      Note: This page covers information specific to California. See the section on Protecting Sources and Source Material for more general information.

      There are three potential legal bases for protecting your sources and source material in California: the California shield law, the United States Constitution, and the federal Privacy Protection Act.

      The shield law protects the identity of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities. A leading California case has found that the shield law protects some -- but not necessarily all -- online publishers and amateur journalists (more below). The level of protection offered by the shield law depends on whether the case is a civil or criminal case and whether the person from whom information is sought is a party to the case or not. It does not protect you from disclosing information when you are a party to a civil or criminal case.

      The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in California recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need. Unlike the shield law, this privilege may apply even when you are a party to a civil lawsuit or criminal case.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      California has no other sources of law that offer you protection from disclosing information.

      Shield Law

      Source and Text

      The California shield law is contained in the California Constitution, Cal. Const. art. I, § 2(b). An essentially identical shield law is also contained in California's Evidence Code, Cal. Evidence Code § 1070.

      In relevant part, California's shield law states:

      A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . or any person who has been so connected or employed, shall not be adjudged in contempt [by a body with legal authority] for refusing to disclose the source of any information procured . . . or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. . . .
      As used in this subdivision, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
      Who is Covered?

      California's shield law protects a person "connected with or employed upon a newspaper, magazine, or other periodical publication." In an important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate court held that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online. In that case, Jason O'Grady operated an "online news magazine" about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O'Grady did not have to identify his source.

      The O'Grady case does not mean that all online publishers will benefit from the protection of the California shield law. The court indicated that the shield law protects newsgatherers, like O'Grady, who engage in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." On the other hand, the court said the shield law might not protect "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group." The court expressly declined to decide whether the shield law applies to bloggers because of the "rapidly evolving and currently amorphous meaning" of the word "blog." Thus, the exact reach of the California shield law is unclear, but it arguably protects online publishers who gather and disseminate news to the public. The exact definition of "news" is uncertain, and future cases will no doubt determine its contours more precisely.

      What Information is Protected?

      California's shield law protects several types of information. First, it protects unpublished information obtained or prepared in the process of gathering information for communication to the public, including things like notes and outtakes. This unpublished information may be protected from disclosure regardless of whether you obtained it in confidence or not.

      Second, it protects the identity of sources, whether confidential or not. The shield protects not only the identity of sources themselves, but also information that might lead to their identity.

      Shield Law Protection in Different Contexts

      The strength of protection offered by California's shield law varies based on the type of case and whether the person from whom information is sought is a party to the case:

      • Civil cases in which the newsgatherer is a third party: Here, the shield law offers you absolute protection (assuming you are covered by the statute, an issue discussed above). If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information.

      • Criminal cases in which the newsgatherer is a third party: Here, the strength of the shield depends on whether a prosecutor or a criminal defendant is seeking the information. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you generally will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can sometimes overcome the shield. If a criminal defendant seeks information from you (again, assuming you were covered by the shield law), a California court would balance your privilege against the defendant's right to a fair trial. As a threshold matter, the criminal defendant would need to show "a reasonable possibility that the information [would] materially assist his defense." The court would then weigh four factors to determine whether to compel disclosure: (1) whether the information sought is confidential or sensitive, (2) the interests protected by the shield law, (3) the importance of the information to the defendant, and (4) whether alternative sources for the information exist. The results would be different depending on the facts of the particular case.

      • When the newsgatherer is a party to a case: When you are a party to a case, the law still protects you from being held in contempt for refusing to disclose the identity of your source and/or unpublished newgathering information, but this provides little protection because contempt is not the only remedy available to the court to force you to disclose information.  For instance, if you refuse to disclose information, the court could enter judgment against you.

      For more detailed information about the California shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: California.

      Federal Constitutional Reporter's Privilege in State Courts

      Even when California's shield law is inapplicable, a newsgatherer still may receive some protection based on the First Amendment of the U.S. Constitution. As discussed above, California's shield law does not protect parties to civil and criminal cases. However, California's state courts have found that the First Amendment provides newsgatherers with a qualified privilege against disclosure of confidential sources and information provided by confidential sources, even when they are parties to the case in which information is sought. In applying the qualified privilege, a court will balance the need of the person seeking information and the public interest in disclosure against the public interest in an uninhibited press.

      Before ordering disclosure of the identity of confidential sources or information provided by confidential sources, California state courts balance five factors: (1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure. It is not clear whether California courts would extend this protection to those publishing news through non-traditional media.

      Federal Constitutional Reporter's Privilege in Federal Courts

      Federal courts in the Ninth Circuit, which encompasses California, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

      The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

      For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see Legal Protections for Sources and Source Material.

       

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      District of Columbia Protections for Sources and Source Material

      Note: This page covers information specific to the District of Columbia. See the section on Protecting Sources and Source Material for more general information.

      The District of Columbia has a shield statute that may protect your newsgathering material from forced disclosure. The shield law protects both the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The protection for the identity of sources is "absolute," meaning there are no exceptions to the law's protection. On the other hand, protection for unpublished information is "qualified," meaning it will not provide protection in all circumstances. The shield protects those who are "employed by the news media" (definition below), so it may not protect some amateur journalists and others who publish informally and/or sporadically.

      In addition, federal courts in the D.C. Circuit have recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. This qualified privilege protects a broad category of individuals collecting information for dissemination to the public, and it protects both the identity of sources and unpublished information.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      The District of Columbia has no other sources of law that offer you protection from disclosing information.

      Shield Law

      Source and Statutory Text

      The District of Columbia has a shield law, titled the Free Flow of Information Act, D.C. Code § 4701-4704. You can see the four parts of D.C.'s shield law below, with excerpts of important text.

      For the purpose of this chapter, the term "news media" means . . . [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public.
      Except as provided in section 16-4703, no [legal body] shall compel any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose: (1) The source of any news or information procured by the person while employed by the news media and acting in an official news gathering capacity, whether or not the source has been promised confidentiality; or (2) Any news or information procured by the person while employed by the news media in the course of pursuing professional activities that is not itself communicated in the news media . . . .
      (a) A court may compel disclosure of news or information otherwise protected from disclosure under section 16-4702(2) if the court finds . . . by clear and convincing evidence that: (1) The news or information is relevant to a significant legal issue . . .; (2) The news or information could not, with due diligence, be obtained by any alternative means; and (3) There is an overriding public interest in the disclosure.
      (b) A court may not compel disclosure of the source of any information protected under section 16-4702.
      The publication by the news media or the dissemination by a person employed by the news media of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is contained in section 16-4702.

      Who is Covered?

      The D.C. shield law applies to information obtained by any person "while employed by the news media." In addition to traditional news media formats like newspapers, magazines, and television, the term "news media" also covers the broader category of "any printed, photographic, mechanical, or electronic means of disseminating news and information to the public." So, the "news media" clearly encompasses those engaging in online publishing of news and information.

      The key question for many online publishers, therefore, will be whether they are "employed" in online publishing. There is no law specifically addressing this point in the online or non-traditional journalism context. But generally the law does not seem to require traditional employment by an organization. For instance, one case, Prentice v. McPhilemy, Case No. 98-CA-0004309 (D.C. Super. Ct. May 5, 1999), held that an author working on his own to write a book was covered by the statute. However, the law may require some kind of income or payment in return for your activities. This "employment" requirement could present an obstacle to some amateur journalists and others who publish independently, informally and/or sporadically and who do not make money from their activities.

      What Information is Protected? How Strong is the Protection?

      D.C.'s shield law protects two categories of information, which are protected to different degrees:

      Identity of Sources: D.C.'s shield law protects "the source of any news or information." The shield protection is absolute -- under no circumstances can courts compel someone covered by the statute (above) to divulge the identity of a source. It protects you whether or not you promise confidentiality to the source in question. The shield applies equally in criminal and civil cases. It also applies whether or not the newsgatherer is a party to the case in which information is sought.

      Unpublished information: D.C.'s shield law protects information gathered or prepared for a story, post, or other work, which is not ultimately published. The shield covers all types of materials, whether written, audio, video, or any other format. It applies in both criminal and civil cases, and it applies whether or not the newsgatherer is a party to the case in which information is sought.

      The protection offered by the D.C. shield law to unpublished information is qualified, which means that a court may force you to reveal it under certain circumstances, even if you are covered by the statute (above). In order to compel disclosure of unpublished information, a court or other legal body must find that three conditions are met: (1) the news or information is relevant to a significant legal issue; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure. ("Due diligence" is a legal term that generally refers to a reasonable amount of effort.)

      The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense.

      For more detailed information about the D.C. shield law, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C..

      Federal Reporter's Privilege

      Federal courts in the D.C. Circuit have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. This qualified privilege applies to the identity of sources and unpublished information collected during newsgathering.

      Who is Covered?

      Although the law is not entirely clear on who may take advantage of the federal reporter's privilege, federal courts in D.C. have taken a broad view of who qualifies as a "reporter" or "journalist."

      In one case, a federal district court characterized the law as follows: "an individual successfully may assert the journalist's privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press." Under this view, the party claiming the reporter's privilege must introduce competent evidence to show that he or she had an "intent to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).

      In another case, a court upheld the claimed privilege of an individual who published his own biweekly newsletter on U.S. political and social movements. The court explained that "the privilege is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment, or to criticize." Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986). It would be possible to draw an analogy between this kind of newsletter and an independently published blog or website.

      These cases provide strong support for the argument that a amateur and non-traditional journalists, including those who publish online, are protected by the federal reporter's privilege in D.C.

      What Information is Protected?

      In D.C., the federal reporter's privilege protects both the identity of sources and unpublished information collected during newsgathering. With regard to sources, the privilege applies whether or not you promise confidentiality to a source. However, when you do not promise confidentiality to a source, the privilege may be weaker, and a court may be more willing to require disclosure.

      Strength of the Privilege

      In D.C., the federal reporter's privilege is qualified, meaning that a party seeking information can overcome it upon a proper showing of need. The federal courts are most likely to uphold the reporter's privilege in a civil case where the person invoking the privilege is not a party to the lawsuit. In contrast, courts are more likely to order disclosure of information in a criminal case where the criminal defendant is seeking information from a reporter to help mount his/her defense.

      For additional information, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C. Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Florida Protections for Sources and Source Material

      Note: This page covers information specific to Florida. See the section on Protecting Sources and Source Material for more general information.

      Florida has a shield law that may protect your sources and newsgathering materials. It protects both the identity of sources and unpublished information acquired or prepared during newsgathering, such as notes and outtakes. However, the protection extends only to "professional journalists" and appears to be limited to traditional media formats.

      Nevertheless, even if you do not qualify for Florida's shield law, you may still be able to protect your sources and source material. Both prior to and after the passage of the shield law, Florida courts have confirmed that a common law privilege protects the identity of a journalist's sources and source materials. This common law privilege may offer protection for amateur and non-traditional journalists.

      In addition, federal courts in the Eleventh Circuit, which encompasses Florida, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Source and Statutory Text

      Florida's shield law, located at Fla. Stat. § 90.5015, states in relevant part:

      (1) DEFINITIONS . . . (a) "Professional journalist" means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.
      (2) PRIVILEGE.--A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that: (a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought; (b) The information cannot be obtained from alternative sources; and (c) A compelling interest exists for requiring disclosure of the information.
      . . .
      (4) WAIVER.--A professional journalist does not waive the privilege by publishing or broadcasting information.
      Who is Covered?

      Florida's shield law applies only to "professional journalists." To qualify for the shield law's protection, you must be acting as an employee or independent contractor for "a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine." Book authors are specifically excluded from protection. The CMLP is not aware of any Florida cases addressing whether an employee or independent contractor for an online news publication is covered by the statute, but the language of the statute makes such coverage doubtful. In addition, the "professional journalist" requirement would likely exclude from coverage many types of amateur and non-traditional journalists who do not receive payment for their work.

      What Information is Protected?

      Florida's shield law extends to both the identity of sources and unpublished information gathered and prepared in the course of newsgathering, such as notes and outtakes. The statute excludes from its protection physical evidence, eyewitness accounts, or recordings of crimes. The shield law protects the identity of a source whether or not you promise confidentiality to the source in question. Publication of some information on a topic does not constitute a waiver of the privilege with respect to that topic.

      How Strong is the Protection?

      The shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances, even if you are covered by the statute (above). In order to compel disclosure of the identity of an anonymous source or unpublished information, a court or other legal body must find that three conditions are met: (1) the information is relevant and material to unresolved issues in the case; (2) the information cannot be obtained from alternative sources; and (3) a compelling interest exists for requiring disclosure of the information. The results of this kind of balancing test would be different depending on the facts of the particular case.

      The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.

      For more detailed information about the Florida shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Florida.

      Common Law Privilege

      The Florida common law (i.e., judge-made law) may protect you from having to disclose information even if the shield law does not. Unlike in some other states, where shield laws eliminated common law protections for newsgatherers, the Florida shield law explicitly preserves common law protections. Additionally, the Florida Supreme Court has continued to recognize a common law privilege after enactment of the shield law.

      Who is Protected?

      Florida courts have not indicated specifically who is protected by the common law privilege for newsgatherers. There are at least some indications that the common law will protect people that the shield law does not. For instance, while the shield does not protect book authors, a Florida court has held that the common law privilege covers them. Florida v. Trepal, 24 Media L. Rep. 2595, 2596 (Fla. Cir. Ct. 1996). It is not clear how this precedent would translate into an online or amateur-journalism context.

      What Information is Protected?

      The common law privilege applies to the identity of sources and information collected in the course of newsgathering, and it applies whether or not you promise confidentiality to a source. Like the shield law, the common law privilege does not apply to eyewitness observations or physical evidence of a crime.

      How Strong is the Protection?

      The Florida common law privilege is a qualified privilege. If the you and your information fit within its scope, then a court will only order you to disclose information on if it finds: (i) the information is relevant and significant to unresolved issues in the case; (ii) the information cannot be obtained from other sources; and (iii) a compelling interest exists for requiring disclosure. The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.

      Federal Reporter's Privilege

      Federal courts in the Eleventh Circuit, which encompasses Florida, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.

      Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Georgia Protections for Sources and Source Material

      Note: This page covers information specific to Georgia. See the section on Protecting Sources and Source Material for more general information.

      Georgia has a shield law that protects the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The shield law creates a qualified privilege that may be overcome in certain circumstances, and it does not apply when you are a party to a lawsuit. The language of the shield law suggests that it may not apply to electronic media and online publishing, but the law is uncertain on this point.

      In addition, federal courts in the Eleventh Circuit, which encompasses Georgia, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      There is no common law protection for sources or source material in Georgia.

      Shield Law

      Source and Statutory Text

      Georgia's shield law, located at Ga. Code § 24-9-30, states in relevant part:

      Any person . . . engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought: (1) [i]s material and relevant; (2) [c]annot be reasonably obtained by alternative means; and (3) [i]s necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

      Who is Covered?

      The Georgia shield law covers people engaging in "the gathering and dissemination of news for the public." Significantly, however, its coverage is limited to those disseminating news through a "newspaper, book, magazine, or radio or television broadcast." The language of the statute therefore seems to limit protection to traditional forms of media. That said, the CMLP is not aware of any Georgia cases interpreting this language in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). The argument might be even stronger with respect to electronic analogs of the media listed, such as e-zines, web radio, podcasts, or videocasts.

      What Information is Protected?

      Georgia's shield law is broad -- it covers "any information, document, or item obtained or prepared in the gathering or dissemination of news." It extends to the identity of a source, information that would lead to the identity of a source, and unpublished information collected or prepared in the course of newsgathering. The protection applies whether or not you promise a source confidentiality, and whether or not you share the identity of the source with a limited number of third parties. Publishing information eliminates protection for the information actually published, but it does not eliminate protection for non-published information gathered in preparing the published news.

      How Strong is the Protection?

      The shield law provides a qualified privilege, which means that a court may force you to reveal information under certain circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that three conditions are met: (1) the information is "material" (i.e., significant) and relevant to the case in question; (2) the information cannot be reasonably obtained by alternative means; and (3) the information is necessary to the proper preparation or presentation of the case of the party seeking the information.

      The same test applies in criminal and civil cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense.

      The shield law does not protect you at all when you are a party to a lawsuit (for example, when you are suing or being sued, or when you are charged with a crime).

      For more detailed information about the Georgia shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Georgia.

      Federal Reporter's Privilege

      Federal courts in the Eleventh Circuit, which encompasses Georgia, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.

      Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Illinois Protections for Sources and Source Material

      Note: This page covers information specific to Illinois. See the section on Protecting Sources and Source Material for more general information.

      Illinois has a shield law that may protect your sources and newsgathering materials. Whether the shield law covers you depends on whether the law deems you a "reporter," and on the medium in which you work. If the shield applies to you, it can protect both the identity of your sources and unpublished information collected during newsgathering. The shield law creates a qualified privilege -- in certain circumstances, a court may order you to disclose information even if you are covered by the statute.

      Historically, federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Illinois.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      There is no common law protection for sources or source material in Illinois.

      Shield Law

      Source and Statutory Text

      Illinois's shield law, located at 75 Ill. Comp. Stat. 5/8-901 to 8-909, states in relevant part:

      Sec. 8‑901. Source of information.

      No court may compel any person to disclose the source of any information obtained by a reporter except as provided in [the other provisions of the shield law].

      Sec. 8‑902. Definitions.

      (a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .
      (b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
      (c) "Source" means the person or means from or through which the news or information was obtained.

      Sec. 8‑907. Court's findings.

      An order [requiring the disclosure of protected information] shall be granted only if the court . . . finds . . . that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff's need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information . . . .

      Who is Covered?

      To be protected by the Illinois reporter shield, you must meet two conditions: First, you must fit within the law's definition of "reporter." Second, the medium in which you publish must meet the law's definition of a "news medium."

      Reporter: The statute defines a "reporter" as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis." The key term here is "regularly," so you may not be covered if your activities are sporadic or occasional. Illinois courts have not ruled on whether the statute covers amateur or hobbyist newsgatherers, but the language of the statute (terms like "business" and "full-time or part-time") indicates that it might not.

      News medium: The law defines "news medium" to include electronic media in addition to traditional forms of news publication. However, Illinois courts have not had the opportunity to clarify the definition of "news medium" as it applies to non-traditional journalists and other online publishers, and several questions remain unanswered. For example, the definition includes electronic periodicals and electronic news services, but it is unclear whether a blog or message board would fit into those categories. Additionally, the definition includes people making "news reels and other motion picture news," but it is hard to say whether this includes documentary films, video-blogs, and other forms of online video production. It is also unclear whether the definition includes internet radio, internet television, and podcasts.

      What Information is Protected?

      Illinois's shield law protects the "sources" of information. The law defines a "source" as "the person or means from or through which the news or information was obtained." The law applies to both human sources and documentary sources, including information obtained in the newsgathering process, whether confidential or non-confidential (i.e., information not obtained in return for a promise of confidentiality). In People v. Slover, 753 N.E.2d 554, 558 (Ill. App. Ct. 2001), an Illinois court held that a reporter's unpublished photograph depicting police performing a search was a protected "source" within the meaning of the statute. You do not need to promise a human source confidentiality in order to take advantage of the shield's protection.

      How Strong is the Protection?

      The Illinois shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that "all other available sources of information have been exhausted" and that "disclosure of the information sought is essential to the protection of the public interest involved." The results of this kind of balancing test would be different depending on the facts of the particular case.

      This standard applies in both civil and criminal cases, although a slightly different standard applies in civil defamation actions. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense. One Illinois court has held that the shield does not apply to non-confidential information sought by a criminal defendant.

      For more detailed information about the Illinois shield law, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: Illinois.

      Federal Reporter's Privilege

      Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or nonconfidential) collected during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

      A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois.

      For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Indiana Protections for Sources and Source Material

      Note: This page covers information specific to Indiana. See the section on Protecting Sources and Source Material for more general information.

      Indiana has a shield law that may protect you from having to reveal the identity of your sources. However, the scope of the shield law is quite narrow: it applies only to sources, not documents and information collected during newsgathering, and it appears to cover only a small class of professional journalists working in traditional media. If the shield law applies to you, it provides an absolute privilege -- a court may not legally order you to reveal the identity of your source(s).

      The Indiana Supreme Court has ruled that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. A previous Indiana case had ruled that a qualified "reporter's privilege" applied in civil cases, but the continued validity of this case is now in question.

      Historically, federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Indiana.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Indiana does not recognize any common law privilege for newsgatherers.

      Shield Law

      Source and Statutory Text

      Indiana's shield law, located at Ind. Code § 34-46-1, -2, states:

      Applicability of chapter
      Sec. 1. This chapter applies to the following persons:
      (1) any person connected with, or any person who has been connected with or employed by:
      (A) a newspaper or other periodical issued at regular intervals and having a general circulation; or
      (B) a recognized press association or wire service;
      as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and
      (2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.
      Privilege against disclosure of source of information
      Sec. 2. A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:
      (1) published or not published:
      (A) in the newspaper or periodical; or
      (B) by the press association or wire service; or
      (2) broadcast or not broadcast by the radio station or television station;
      by which the person is employed.

      Who is Covered?

      The Indiana shield law only covers employees and owners of newspapers, periodicals, recognized press associations, and wire services, and owners, officials, and employees of licensed radio and television stations. The statute imposes an additional requirement that the person invoking the shield receive income in connection with his or her news-related activities. These limitations appear to exclude from the shield's coverage amateur journalists and professional journalists working in media others than the traditional forms listed in the statute. That said, the CMLP is not aware of any Indiana cases interpreting this language in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). For audio and video content creators, the statutory language limiting protection to an employee, official, or owner of "a licensed radio or television station" may constitute a significant barrier to coverage. The "income" requirement would create a significant barrier for all kinds of amateur journalists and other online publishers who do not make money from their activities.

      What Information is Protected?

      Indiana's shield law protects only the identity of a source. This protection applies whether information from the source is published or unpublished. The law is not clear on whether you must promise confidentiality to a source in order to obtain the protection of the shield law.

      How Strong is the Protection?

      When the shield law covers you, its protection is absolute. In such a situation, a court or other legal body cannot force you to reveal the identity of your source. The shield applies equally in both civil and criminal cases, and at least one Indiana court has applied the shield when the person invoking the shield was a party to the lawsuit. See Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984) (applying the shield to a reporter sued for libel).

      For more detailed information about the Indiana shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Indiana.

      Constitutional Reporter's Privilege in Indiana State Courts

      Indiana's shield law is not the only possible source of protection for your sources and newsgathering material. Courts in some states have interpreted the First Amendment to the U.S. Constitution and similar clauses in their state constitutions as creating a qualified privilege for reporters. The Indiana Supreme Court has ruled, however, that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). A previous Indiana case had ruled that a qualified reporter's privilege based on the First Amendment to the U.S. Constitution applied in a civil case when unpublished source material was sought from a non-party reporter. In re Stearns, 489 N.E.2d 146, 149-51 (Ind. Ct. App. 1986). The court held that the person seeking source material had to establish three elements in order to overcome the privilege:

      (a) the material sought is highly relevant;
      (b) there is a compelling need for the information sufficient to override the First Amendment privilege; and
      (c) the party has been unsuccessful in securing the information from other sources.

      In light of the WTHR-TV case, however, the continued validity of the Stearns case, and the continued existence of a federal reporter's privilege in Indiana state courts, is in doubt. Therefore, at least in Indiana state court, you may not want to put much reliance on a constitutional reporter's privilege for sources or source material.

      Constitutional Privilege in Indiana Federal Courts

      Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or non-confidential) collected or prepared during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

      A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the federal reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois. Therefore, you cannot rely on their being a constitutional reporter's privilege for your sources or source material in Indiana federal courts.

      For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Subject Area: 

      Massachusetts Protections for Sources and Source Material

      Note: This page covers information specific to Massachusetts. See the section on Protecting Sources and Source Material for more general information.

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      Massachusetts does not have a shield law. The state legislature recently considered enacting a shield law, but failed to do so.

      You may be able to protect your sources and unpublished information obtained in the course of newsgathering under Massachusetts "common law." "Common law" is judge-made law. Because common law is developed on a case-by-case basis by courts, rather than through legislative pronouncement of general rules, it often suffers from gaps, ambiguities, and uncertainties. This is the case with Massachusetts's common law privilege for reporters, which is not well defined.

      In addition, federal courts in the First Circuit, which encompasses Massachusetts, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution that protects the identity of sources and (potentially) unpublished information collected or prepared during newsgathering. However, the scope of this privilege is uncertain, and its protection depends on the circumstances of your particular case. Massachusetts state courts do not recognize any protections for reporters based on the U.S. Constitution or the Massachusetts Constitution.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Common Law

      Massachusetts courts recognize a common law privilege for reporters. It applies to sources and unpublished information. Its exact character and scope are uncertain, as is its application to online publishing and non-traditional journalism.

      Who is Covered?

      Massachusetts courts have not defined who exactly is covered by the common law reporter's privilege. However, a federal court interpreting Massachusetts law held that an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the "organized press." Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992). However, this decision has no weight as precedent (i.e., it is not legally binding) in Massachusetts state courts. That means that future courts that reach the same issue could rule differently. Moreover, it is unclear how this case would apply in other cases, such as when the person seeking to protect information is an amateur or hobbyist. Nevertheless, it provides support for the argument that people outside the traditional news media are covered by the Massachusetts common law privilege as long as they are gathering information with an intent to disseminate it to the public.

      What Information is Protected?

      The common law privilege protects unpublished information gathered or prepared in the course of newsgathering and the identity of sources. The law gives more protection to confidential information (i.e., information received in exchange for a promise of confidentiality) than non-confidential information.

      How Strong is the Protection?

      The common law privilege is qualified, meaning that courts sometimes will order you to disclose information, even if you and your information qualify for protection. Courts in Massachusetts do not apply any set formula in determining whether information should be disclosed or not. Instead, they balance the "interests" of the newsgatherer and the party who wants the information. The results of this kind of balancing test would be different depending on the facts of the particular case.

      The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, however, courts may be particularly inclined to order disclosure when you are a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense. The protection is especially weak if someone sues you for defamation; however, a court might find that you are not required to reveal your sources if the plaintiff cannot "demonstrate an essential relationship between the identities of the sources and the plaintiffs' ability to establish an element of their claim." Wojcik v. Boston Herald, Inc., 60 Mass. App. Ct. 510, 517 n.17 (2004).

      For more detailed information about Massachusetts's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Massachusetts.

      Constitutional Protection in Federal Court

      Federal courts in the First Circuit, which encompasses Massachusetts, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and (potentially) to unpublished information collected or prepared during newsgathering.

      In interpreting the only Supreme Court case addressing reporter’s privilege, Branzburg v. Hayes, 408 U.S. 665 (1972), the U.S. Court of Appeals for the First Circuit has recognized some room for balancing First Amendment interests with countervailing governmental interests in reporters’ disclosure of sources. The majority opinion in Branzburg held that the First Amendment does not provide a reporter with a privilege from testifying before a grand jury about information obtained and events witnessed in the course of researching a story. However, Justice Powell’s fifth-vote concurring opinion is often considered controlling, establishing a qualified privilege subject to a balancing test “between freedom of the press and the obligation of all citizens to give relevant testimony.” The First Circuit has held that “[t]he Branzburg analysis, especially as to the strength of the governmental and public interest in not impeding criminal investigations, guides our outcome,” implicitly adopting some form of Justice Powell’s balancing. In re Dolours Price, 685 F.3d 1, 18 (1st Cir. 2012), cert. denied, 133 S. Ct. 1796 (U.S. 2013).

      Who is Covered?

      Federal courts in the First Circuit have extended the reporter's privilege to people other than traditional journalists, including research analysts and academics. In an important case, the First Circuit Court of Appeals stated that

      [T]he medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work. . . . [T]he courts will make a measure of protection available to him as long as he intended "at the inception of the newsgathering process" to use the fruits of his research "to disseminate information to the public."

      Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). The court's statement indicates that the key factor in determining coverage is whether the person seeking protection collects information with the intent to spread it to the public. Many online publishers and non-traditional journalists could fit into this category.

      What Information is Protected?

      The reporter's privilege protects the identity of your sources, as well as information that might lead to the identification of sources. You do not have to promise confidentiality to be covered by the privilege, but courts give greater protection when the source is confidential. In some circumstances, the reporter's privilege may also protect unpublished information obtained or prepared in the course of newsgathering.

      How Strong is the Protection?

      The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a sufficient showing of need by the party seeking the information. As part of this protection, a court may require the party seeking information from a reporter to try to get the information elsewhere first.

      The reporter's privilege applies in both civil and criminal cases, but the privilege is weaker in criminal cases.  In a decision dealing with government subpoenas directed at an oral history research project at Boston College (the "Belfast Project") in aid of a criminal investigation in the United Kingdom, the First Circuit interpreted Branzburg as holding that “the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment or common law injury.” In re Dolours Price, F.3d at 16.  In a subsequent decision in the same case, U.S. v. Trustees of Boston College, 12-1236, 2013 WL 2364165 (1st Cir. May 31, 2013), the First Circuit held that the Supreme Court's balancing of interests in Branzburg allowed the government to obtain production of materials relevant to the UK criminal investigation notwithstanding concerns about source confidentiality, while allowing judges to deny access to materials not deemed relevant. The First Circuit further held that Branzburg allowed for a different balancing of interests in civil cases and other situations factually distinct from the criminal investigation in Branzburg, including allowing a court to require the government to demonstrate a higher degree of "direct relevance" to obtain materials that would disclose source identities. 

      It is also available when you are a party to the lawsuit in question (i.e., you are suing someone or being sued), but the privilege is also weaker in these circumstances, and successful assertion of the privilege may make it difficult for you to make out your case.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 1st Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Michigan Protections for Sources and Source Material

      Note: This page covers information specific to Michigan. See the section on Protecting Sources and Source Material for more general information.

      Michigan has two shield law statutes that may protect your sources and source material, but only in limited circumstances. The Michigan shield laws apply only when you receive a subpoena as part of a grand jury proceeding or as part of a criminal investigation. But they offer you no protection in civil cases (whether you are a party to the case or not), or when a criminal defendant seeks information from you.

      Federal courts in the Sixth Circuit Court of Appeals, which encompasses Michigan, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter's privilege in two cases.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Laws

      Circumstances of Protection

      Michigan's two shield laws apply when prosecutors seek information in criminal cases. The first shield law applies to grand jury proceedings. Grand jury proceedings occur when a prosecutor decides to charge someone with a crime. The prosecutor must ask the grand jury to indict the accused person before the person can be tried for the crime. In other words, grand juries decide preliminarily whether there is sufficient evidence for government to try the accused person. As part of this process, government prosecutors sometimes issue subpoenas to third parties (i.e., people not involved in the criminal case) who might have relevant information, including the press. The grand jury shield provides protection against these subpoenas.

      The second Michigan shield law applies to subpoenas issued by prosecutors as part of a criminal investigation. The prosecutorial investigation shield may give you protection if you receive such a subpoena.

      Michigan's shield laws do not apply when a criminal defendant seek information from you. They also do not apply in civil cases.

      Source and Statutory Text

      Michigan's grand jury shield can be found at MCL 767.5a. The state's prosecutorial investigation shield law can be found at MCL 767A.6(6).

      Both laws cover "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." Both laws protect "the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant."

      The grand jury shield has this exception: it does not apply in "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted."

      The prosecutorial investigation shield has two exceptions: it does not cover published information, and it does not cover situations in which the newsgatherer is the subject of the investigation.

      Who is Covered?

      Both shield laws protect "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." The shields appear to cover anyone who is involved in spreading "news" to the public, which should cover many online publishers and non-traditional journalists. However, Michigan courts have not had a chance to address the meaning of this statutory language and have not defined "news."

      The second shield law, which covers investigations by prosecutors, excludes from coverage those who are the subject of a criminal investigation. Therefore, if you are the subject of a criminal investigation, you cannot rely on the prosecutorial investigation shield to refuse to disclose information.

      What Information is Protected?

      Both shield laws protect three things. First, they protect the identity of "informants." Second, they protect any other unpublished information you have obtained from an "informant." Third, they protect any notes, recordings, and similar materials made in connection with your communications with an "informant." The shield laws do not define the term "informant," but it probably applies what is commonly called a "source." They do not distinguish between confidential and non-confidential information, as long as it is not published.

      How Strong is the Protection?

      Remember, the shield laws only apply to investigations by prosecutors and grand jury proceedings. They do not protect you from inquiries by criminal defendants or parties in civil cases.

      When the shields apply, they are, with one exception, "absolute." That means that if you and your information are protected by the shield, courts may never order you to reveal it.

      The one exception is that the grand jury shield does not cover "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted." In other words, to obtain your information in a grand jury proceeding, a prosecutor must show all of the following:

      • The case concerns a crime punishable by life imprisonment;
      • The information is "essential" to the proceeding; and
      • No other source of the same information is available.

      Note also that the prosecutorial investigation shield does not protect you when you are the subject of a criminal investigation.

      For more detailed information about the Michigan shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Michigan.

      Constitutional Protection in Federal Court

      Federal courts in the Sixth Circuit, which encompasses Michigan, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.

      Who is Covered?

      The scope of the federal reporter's privilege is uncertain in federal court in Michigan. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization's newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.

      What Information is Protected?

      The Sixth Circuit Court of Appeals has held that the reporter's privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.

      How Strong is the Protection?

      The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a strong showing of need by the party seeking the information.

      Federal courts in the Sixth Circuit have not determined whether the reporter's privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 6th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      New Jersey Protections for Sources and Source Material

      Note: This page covers information specific to New Jersey. See the section on Protecting Sources and Source Material for more general information.

      New Jersey has a shield law that may protect your sources and newsgathering materials. When information is sought in connection with a civil case, the shield law provides "absolute" protection, meaning that it cannot be overcome. When information is sought in connection with a criminal case, the shield law provides a qualified privilege, meaning that a court sometimes may order you to disclose information even if you are covered by the statute.

      In addition, federal courts in the Third Circuit, which encompasses New Jersey, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution and the common law. This privilege protects the identity of sources and unpublished information obtained or prepared in the newsgathering process, such as notes and outtakes. The strength of the privilege's protection depends on the circumstances of your particular case. New Jersey state courts do not recognize any protections for reporters based on the U.S. Constitution, the New Jersey Constitution, or the common law.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Source and Statutory Text

      New Jersey's shield law, located at N.J. Stat. §§ 2A:84A-21 to 21.8, states in relevant part:

      N.J. Stat. § 2A:84A-21

      [A] person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere

      a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

      b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

      . . .

      N.J. Stat. § 2A:84A-21a

      a. "News media" means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.

      b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while suchrequired relationship is in effect.

      . . .

      h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.

      Who is Covered?

      New Jersey's shield law uses a complicated series of definitions to describe who the law protects. Despite the complexity, a reasonable reading suggests that the law will protect most people who bring news to the public regularly, including amateur and non-traditional journalists publishing through online media.

      First, to be covered, you must be a "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered. . . ." You may perform a variety of different roles. You need not be a writer -- any role in "gathering, producing, transmitting, compiling, editing, or disseminating" is sufficient for protection. You need not be a paid employee of a news source to be covered. However, you must somehow be "connected with" the "news media." Therefore, whether you are protected hinges on what "news media" means. That definition is discussed below.

      What does "news media" mean? The law defines it to mean "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." Importantly, "news media" is not limited to the institutional press or "mainstream media" -- as long as you have the requisite relationship with one of the mediums it lists, you are covered. The definition of "news media" encompasses a wide variety of media. Since it covers electronic sources that are similar to the traditional sources it lists, it should cover periodicals online, Web radio, regular podcasts, and the like. It may cover blogs, since they are analogous to electronic newspapers or magazines. However, the law may not cover electronic media that are not analogous to the traditional sources listed, such as bulletin boards and non-updated Web pages. Future cases will hopefully clarify the shield law's application to online publishing and non-traditional journalism.

      What Information is Protected?

      New Jersey's shield law protects both the identity of your sources and unpublished information you gather in the process of obtaining news.

      Identity of sources

      The shield law protects not only the identity of a source, but also any information that would lead to identification. You do not have to promise a source confidentiality in order to protect his/her identity under the shield. Publishing some information provided by a source does not eliminate the law's protection of the source's identity.

      Unpublished information

      The shield law protects, with certain exceptions, information gathered for purposes of dissemination to the public. Publishing a story only eliminates protection for the information that is actually published. The shield law excludes from coverage your first-hand eyewitness accounts or your participation in physical violence or property damage.

      The law protects information collected "in the course of pursuing [your] professional activities." The phrase "in the course of pursuing...professional activities" might seem to limit the law's protection to professional employees, but the law defines it considerably more broadly. It means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public." Thus, as mentioned above, the key is whether you obtain information for the purpose of disseminating it to the public.

      How Strong is the Protection?

      The strength of the shield depends on the type of case:

      Civil: When information is sought in connection with a civil case, the shield is "absolute." If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information. The absolute protection applies when you are a party to a civil case (e.g., you are suing or being sued), but asserting it could make it more difficult to make out your case.

      Criminal When information is sought in connection with a criminal case, the shield is qualified -- courts sometimes may order you to disclose information even if you and the information are protected by the shield. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you ordinarily will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can overcome the shield, if they can prove the following things to the court:

      • The information is "relevant, material, and necessary" for the defendant's case;
      • The information cannot be obtained from a less intrusive source;
      • "[T]he value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure";
      • "[T]he request is not overbroad, oppressive, or unreasonably burdensome."

      For more detailed information about the New Jersey shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New Jersey.

      Constitutional and Common Law Protections in Federal Court

      Federal courts in the Third Circuit, which encompasses New Jersey, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources, information that would lead to a source's identification, and unpublished materials collected or prepared during newsgathering.

      Who is Covered?

      To obtain the protection of the reporter's privilege, you must demonstrate that

      • You are engaged in investigative reporting;
      • You are gathering news; and
      • You have the intent, when starting to gather news, to disseminate information to the public.

      Many online publishers and non-traditional journalists should be able to establish these three requirements. The "investigative reporting" requirement might present an obstacle for some, but in that case you wouldn't have any documents or sources to protect. It is hard to imagine a situation where you would have gathered sources and other information that would not fit the term "investigative reporting."

      What Information is Protected?

      Federal courts in the Third Circuit apply the reporter's privilege to the identity of sources, information leading to identification of a source, and unpublished information collected or prepared during newsgathering. While the source or information need not be confidential in order to receive protection, the qualified privilege is stronger when confidential information is at stake.

      How Strong is the Protection?

      The reporter's privilege is qualified, which means that courts may order you to disclose information if the requesting person's need for the information outweighs the policies favoring a privilege. To determine whether ordering disclosure is appropriate in a given situation, the courts apply a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential. The results of this kind of balancing test would be different depending on the facts of the particular case.

      The courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 3rd Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      New York Protections for Sources and Source Material

      Note: This page covers information specific to New York. See the section on Protecting Sources and Source Material for more general information.

      New York has a shield law that may protect your sources and newsgathering materials. If you qualify for its protection, you must be careful not to disclose information you obtain to people who do not work for the same organization as you, or you may lose the shield's protection.

      New York state courts recognize a qualified "reporter's privilege" based on the U.S. Constitution and the New York Constitution. The precise scope of these protections is uncertain. New York state courts do not recognize any common law privilege for newsgatherers.

      Federal courts in the 2nd Circuit Court, which encompasses New York, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. The level of protection depends on whether you obtained the information in question in exchange for a promise of confidentiality.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Source

      New York's shield law is located at N.Y. Civ. Rights Law § 79-h. Because of the statute's complexity, we won't reproduce it here. Instead, we will explain its important aspects below.

      Who is Covered?

      New York's shield law covers only specific categories of people. In general, you must earn money in connection with work for a traditional news organization in order to be protected. Specifically, you must meet three conditions: (1) you must have the right kind of job; (2) you must work with what the law defines as "news"; and (3) you must work in one of the media listed by the statute. Meeting all three of these conditions likely will present a serious obstacle for many amateur and non-traditional journalists and other online publishers.

      Each condition is detailed below.

      Type of Job

      To qualify for protection, you must either be a "professional journalist" or a "newscaster." You must earn money in your role to qualify for either.

      The law defines "professional journalist" to mean:

      one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

      In essence, you must be an employee or freelance worker performing a newsgathering or editing role for a professional medium of communication.

      The law defines "newscaster" to mean someone who "for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission." In other words, you must earn money as a television or radio reporter.

      News

      To qualify for protection, you must work with "news." The law defines "news" to mean "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Some information, such as a profile of a person of no particular importance who has not been involved in a significant event of public importance, might not be included in this definition.

      Medium

      To be protected, you must work in one the media listed below:

      • Newspaper: Only conventional print newspapers that charge a subscription fee and have been established for at least a year fit in this category.
      • Magazine: Only conventional and established print magazines that charge a subscription fee and have been established for at least a year fit this category.
      • News agency, press association, or wire service: Essentially organizations analogous to the Associated Press or Reuters.
      • Radio or television transmission station or network: Unlike the other other mediums listed above, the law does not define these terms. Thus, unlike with the other terms, it is unclear if radio and television are limited to traditional formats, or if they can include cable networks or Internet-based formats.
      • Other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public: This is likely to be broad enough to encompass online publication, but only to the extent that such publication is carried out either as a business or to demonstrable professional standards; citizen journalists, as well as amateur reporting and blogging, are unlikely to be protected.  This category also serves as a catch-all for other modes of professional communication not listed above, such as print books.

      What Information is Protected?

      The New York shield law protects the identity of sources and information collected in the course of newsgathering. You do not need to have spoken with the source or obtained the information in confidence to obtain protection, but the level of protection is higher if you did.

      Disclosure of information has significant negative consequences for protection under the shield law. The impact depends on who discloses the information:

      • If your source discloses his or her identity after you have spoken with him or her, the source is considered "non-confidential." You still are protected by the the shield, but the level of protection is lower than if the source's identity were confidential.
      • If, after obtaining information, you disclose confidential information or the identity of your source to anyone other than another reporter or editor at your news organization, you waive (i.e., give up) protection for that information. In other words, you lose the shield's protection completely. As a result, in order to retain protection, you should not speak about confidential news information or reveal the identity of sources to outsiders. Once information is published, it is not protected.

      How Strong is the Protection?

      New York's shield law has two tiers of protection.

      Tier One: If you promised your source confidentiality or obtained information in return for a promise of confidentiality, then the shield is absolute. In other words, courts may not order you to reveal it under any circumstances. The absolute protection applies equally whether the information is sought in a civil or criminal case. It applies even if you are a party to the case in which information is sought (e.g., you are suing or being sued).

      Tier Two: If the information is not confidential, then the shield is qualified, which means that sometimes a court may order you to reveal the information. In order to order disclosure, courts must find all three of the following factors to be true:

      • The information is highly "material" (legally significant) and relevant;
      • The information is critical or necessary to a party's case; and
      • The information is not obtainable from any alternative source.

      These tests apply when information is sought in a civil case, in a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case. Courts also are more likely to order disclosure when the the party seeking the information is a criminal defendant.

      For more detailed information about the New York shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

      Constitutional Protection in New York State Court

      Even if the shield law does not apply to you, you may be able to protect your newsgathering information based on other legal protections. New York state courts recognize a qualified reporter's privilege based on the U.S. Constitution and the New York Constitution. It covers both confidential and non-confidential information. Beyond that, the exact scope of the protection is uncertain.

      For additional details, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

      Constitutional and Common Law Protection in Federal Court

      Federal courts in the Second Circuit, which encompasses New York, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.

      Who is Covered?

      Exactly who is covered by the reporter's privilege is unclear. Some cases suggest, however, that you do not need to receive payment for your work or be affiliated with a mainstream news publication.

      What Information is Protected?

      The reporter's privilege extends to the identity of sources and unpublished information obtained or prepared during newsgathering. It protects both confidential and non-confidential information, but confidential information gets more protection (below). If you witness a crime, the privilege does not protect your observations.

      How Strong is the Protection?

      There are two tiers of protection, depending on whether the information is confidential or not. Both levels of protection are qualified, meaning that a court may order you to reveal information under some circumstances.

      Tier One: If you obtained the information in confidence (i.e., in exchange for a promise of confidentiality), then it gets more protection. A court can order you to disclose the information only if it finds that each of the following is true:

      • The information is highly "material" (i.e., legally significant) and relevant;
      • The information is necessary or critical to the maintenance of the party's case; and
      • The information is not obtainable from other available sources.

      Tier Two: If you did not obtain the information in confidence, then it gets less protection. A court can order you to reveal non-confidential information if it find that each of the following is true:

      • The information is "of likely relevance" to a significant issue in the case; and
      • The information is not reasonably obtainable from other available sources.

      These tests apply when the information is sought in a civil case, in a a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case, and the protection is especially weak if someone sues you for defamation. In addition, courts are more likely to order you to disclose information if a criminal defendant is seeking the information in order to mount a defense.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 2nd Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

      Jurisdiction: 

      Subject Area: 

      North Carolina Protections for Sources and Source Material

      Note: This page covers information specific to North Carolina. See the section on Protecting Sources and Source Material for more general information.

      North Carolina has a shield statute that may protect your sources and newsgathering materials. It protects both the identity of your sources and unpublished information collecting during newsgathering. The shield law provides only qualified protection, meaning that a court can order you to reveal information under certain circumstances, even if you qualify for the shield law's protection. North Carolina state courts do not recognize a state constitutional or common law privilege for reporters.

      Federal courts in the Fourth Circuit, which encompasses North Carolina, recognize a qualified privilege based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Source and Statutory Text

      North Carolina's shield law, located at N.C. Gen. Stat. § 8‑53.11, states:

      (a) Definitions. – The following definitions apply in this section:

      (1) Journalist. – Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.

      (2) Legal proceeding. – Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi‑judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.

      (3) News medium. – Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.
      (b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.

      (c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:

      (1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
      (2) Cannot be obtained from alternate sources; and

      (3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought. Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.

      (d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.

      Who is Covered?

      North Carolina's shield law generally covers anyone who is involved with news on behalf of a medium that regularly provides news to the public. The key limitation is that your medium must be "regularly engaged in the business of publication or distribution of news." If you post information on a bulletin board that does not regularly distribute news, or on a static and unchanging website, you probably will not be protected. Moreover, to be protected, your medium must be "accessible to the general public."

      To be covered, your involvement with news can be in the role of "gathering, compiling, writing, editing, photographing, recording, or processing information." This phrase seems to encompass most news-related roles. Your medium can be "print, broadcast, or other electronic means" -- essentially, any medium.

      What Information is Protected?

      North Carolina's shield law protects, with an exception, any "confidential or nonconfidential information, document, or item" you obtain while acting in your role as a newsgatherer. The only exception is that the shield does not protect your eyewitness observations of any crimes or torts. The exception also includes any physical evidence and any recordings you make of a crime or tort.

      How Strong is the Protection?

      The shield law provides qualified protection, meaning that a court can order you to reveal covered information under some circumstances. In order for a court in North Carolina to order disclosure of information that otherwise would be protected by the shield, the court must find all three of the following to be true:

      • The information is relevant and "material" (i.e., legally significant) to the case;
      • The information cannot be obtained from alternative sources; and
      • The information is essential to the case of the person seeking it.

      North Carolina's shield applies equally in civil and criminal cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense, or when you are a party to the case.

      For more detailed information about the North Carolina shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: North Carolina.

      Constitutional Protection in Federal Court

      Federal courts in the Fourth Circuit, which encompasses North Carolina, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The precise scope of the privilege is unclear.

      Who is protected?

      Federal courts in the Fourth Circuit have not expressly defined who is a "reporter" for purposes of the privilege, although they have applied the privilege to reporters and editors in traditional forms of media, including small and large newspapers. The CMLP is not aware of any Fourth Circuit cases applying the privilege in an online context. Therefore, whether amateur and non-traditional journalists publishing online can take advantage of the privilege is an open question.

      What information is protected?

      The Fourth Circuit has not defined with precision what information is protected by its privilege. As a general matter, it appears to cover the identity of sources and unpublished information, both confidential and non-confidential, but the privilege is stronger with regard to confidential information.

      How strong is the privilege?

      The reporter's privilege is qualified, which means that a court may order you to reveal information covered by the privilege if the requesting party's need for it outweighs the policies favoring a privilege. In civil cases, in order to order disclosure, a court must find each of the following to be true:

      • The information is relevant;
      • The information cannot be obtained by alternative means; and
      • There is a compelling interest in the information.

      In criminal cases, the shield may only apply with regard to confidential information. As a practical matter, the courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 4th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Ohio Protections for Sources and Source Material

      Note: This page covers information specific to Ohio. See the section on Protecting Sources and Source Material for more general information.

      Ohio has a shield law that may protect you from having to reveal the identity of your sources. However, the shield law only appears to cover those working for newspapers, press associations, and traditional radio and television broadcast stations. Ohio state courts do not recognize a "reporter's privilege" based on the U.S. Constitution or the Ohio Constitution. Nor do they recognize a common law privilege for reporters.

      Federal courts in the Sixth Circuit Court of Appeals, which encompasses Ohio, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter's privilege in two cases.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Sources

      Ohio's shield law is made up of two provisions -- Ohio Rev. Code § 2739.04 (broadcast) and Ohio Rev. Code § 2739.12 (newspapers).

      Who is Covered?

      Ohio's shield law applies to

      • anyone "engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news" (Ohio Rev. Code § 2739.12); or
      • anyone "engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news." (Ohio Rev. Code § 2739.04).

      The shield law provisions also specify that the person seeking to protect the identity of a source must have obtained information from the source "in the course of . . . employment."

      The statutory language is broad enough to cover owners, employees, and freelancers working for newspapers, press associations, and broadcasting stations in any news-related capacity, but does not appear to cover individuals working in other media. One federal court applying Ohio law found that Dunn Bradstreet, a provider of business information, could not take advantage of the shield because it did not fit into the category of "newspaper or . . . press association." Deltec, Inc. v. Dunn & Bradstreet, 187 F. Supp. 768 (N.D. Ohio 1960). The CMLP is not aware of any cases interpreting this statutory language in an online or non-traditional journalism context. A court could give this language an expansive interpretation, but, for now at least, online publishers should not expect to be covered by the Ohio shield law.

      What Information is Protected?

      The Ohio shield law protects the identity of sources only. It does not protect any other information obtained during the newsgathering process. The identity of your source need not be confidential for you to be protected by the shield.

      How Strong is the Protection?

      Ohio's shield law provides absolute protection in most cases. This means that, if you are covered by the shield law, a court generally cannot order you to reveal the identity of a source regardless of the need of the party requesting it. The protection may be weaker when a criminal defendant seeks information from you, because courts must protect the defendant's constitutional right to a fair trial (including, the ability to mount a defense). In addition, some Ohoi courts have denied protection altogether when the person invoking the shield was a defendant in a libel case.

      For more detailed information about the Ohio shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Ohio.

      Constitutional Protection in Federal Court

      Federal courts in the Sixth Circuit, which encompasses Ohio, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.

      Who is Covered?

      The scope of the federal reporter's privilege is uncertain in federal court in Ohio. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization's newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.

      What Information is Protected?

      The Sixth Circuit Court of Appeals has held that the reporter's privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.

      How Strong is the Protection?

      The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a strong showing of need by the party seeking the information.

      Federal courts in the Sixth Circuit have not determined whether the reporter's privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 6th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Pennsylvania Protections for Sources and Source Material

      Note: This page covers information specific to Pennsylvania. See the section on Protecting Sources and Source Material for more general information.

      Pennsylvania has a shield law that may protect the identity of your confidential sources. It applies to confidential sources and information that would lead to the identity of a confidential source. If the shield applies to you, its protection is absolute, meaning that a court may not order you to disclose the covered information regardless of need of the party seeking it and the competing interests at stake. However, the shield law may only cover individuals working in the traditional news media.

      Federal and state courts in Pennsylvania recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering, whether or not the information is confidential. The privilege is qualified, meaning the party seeking information can overcome the privilege upon a sufficient showing of need.

      In addition, the Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Pennsylvania courts do not recognize any common law privilege for journalists.

      Shield Law

      Source and Statutory Text

      Pennsylvania's shield law, located at 42 Pa. Cons. Stat. § 5942 (scroll down to find § 5942), states in relevant part:

      (a) General rule.--No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.


      Who is Covered?

      The Pennsylvania shield law applies to individuals working in a news-related capacity ("gathering, procuring, compiling, editing or publishing") for a "any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation." The law only applies to those working for a radio or television stations if they keep transcripts or exact recordings of their broadcasts going back one year.

      The language of the statute suggests that it covers only those working in traditional media. That said, the CMLP is not aware of any Pennsylvania cases interpreting the language of the statute in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). One could argue that the listed media should encompass online analogs like news websites, e-zines, web radio, podcasts, and videocasts. The transcript requirement might apply to online analogs of radio and television.

      There is no requirement that you earn money from your news-related activities in order to enjoy the protection of the shield law.

      What Information is Protected?

      Pennsylvania's shield law protects the identity of confidential sources and information that might reasonably lead to the discovery of a confidential source's identity. It does not protect other unpublished information collected or prepared in the newsgathering process, such as notes and outtakes that would not reveal the identity of a confidential source.

      How Strong is the Protection?

      Pennsylvania's shield is absolute, which means that, if the shield law covers you (above), then a court may not order you to reveal the identity of a confidential source or turn over material that would reveal a confidential source's identity, regardless of the requesting person's need for the information. The law applies equally in criminal and civil cases, and when you are a party to the case in question (e.g., you are suing someone or being sued).

      For more detailed information about the Pennsylvania shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Pennsylvania.

      Constitutional Protection in State and Federal Courts

      Federal courts in the Third Circuit, which encompasses Pennsylvania, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. Pennsylvania state courts have followed the federal courts in adopting the reporter's privilege and defining its character and scope. The reporter's privilege applies to the identity of sources, information that would lead to a source's identification, and unpublished materials collected or prepared during newsgathering.

      Who is Covered?

      To obtain the protection of the reporter's privilege, you must demonstrate that

      • You are engaged in investigative reporting;
      • You are gathering news; and
      • You have the intent, when starting to gather news, to disseminate information to the public.

      Many online publishers and non-traditional journalists should be able to establish these three requirements. The "investigative reporting" requirement might present an obstacle for some, but in that case you wouldn't have any documents or sources to protect. It is hard to imagine a situation where you would have gathered sources and other information that would not fit the term "investigative reporting."

      What Information is Protected?

      The reporter's privilege protects the identity of sources, information leading to identification of a source, and unpublished information collected or prepared during newsgathering. While the source or information need not be confidential in order to receive protection, the privilege is stronger when confidential information is at stake.

      How Strong is the Protection?

      The reporter's privilege is qualified, which means that courts may order you to disclose information if the requesting person's need for the information outweighs the policies favoring a privilege. To determine whether ordering disclosure is appropriate in a given situation, the courts apply a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential. The results of this kind of balancing test would be different depending on the facts of the particular case.

      The courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.

      For additional information, see the Reporters Committee for Freedom of the Press's Compendium for the 3rd Circuit and for Pennsylvania.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

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      Texas Protections for Sources and Source Material

      Note: This page covers information specific to Texas. See the section on Protecting Sources and Source Material for more general information.

      Texas enacted a reporters' shield law in May 2009 that might protect your sources as well as any information gathered through your reporting. The law provides for a qualified privilege, which means that a court may order you to reveal protected information, even if you qualify as a "journalist" under the shield law.  The shield law privilege is strongest when information is sought in civil cases; the law offers less protection when information is sought in criminal cases.

      Federal courts in the Fifth Circuit, which encompasses Texas, recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of confidential sources. It is a qualified privilege, meaning that a court may order you to reveal protected information under certain circumstances, even if you qualify as a "reporter" for purposes of the privilege.

      In addition, the Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Statutory Text

      Texas' shield law states in relevant part:

      (2) "Journalist" means a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider . . .

      (3) "News medium" means a newspaper, magazine or periodical . . . or Internet company or provider . . . that disseminates news or information to the public by any means, including: . . .

      (F) electronic; and

      (G) other means, known or unknown, that are accessible to the public. . .  

      Tex. Civ. Prac. & Rem. Code § 22.021

      (a) A judicial, legislative, administrative, or other body with the authority to issue a subpoena or other compulsory process may not compel a journalist to testify regarding or to produce or disclose in an official proceeding:

      (1) [A]ny confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist or

      (2) [T]he source of any information, document, or item described by Subdivision (1).

      (b) A subpoena or other compulsory process may not compel the parent, subsidiary, division, or affiliate of a communication service provider or news medium to disclose the information, documents, or items or the source of any information, documents, or items that are privileged from disclosure under Subsection (a).

      Tex. Civ. Prac. & Rem. Code § 22.023 . (The shield law provision for criminal cases, which contains much of the language quoted above, is found at Tex. Crim. Proc. Code § 38.11.)

      Who is Covered?

      Texas' shield law protects journalists, including those who publish content online, but the law might not protect purely amateur reporters.

      The statute defines "journalist" relatively broadly. In addition to writers, the statute also covers those who edit, compile, photograph, investigate or publish news or information that is disseminated by a "news medium." A "news medium" includes an "Internet company or provider . . . that disseminates news or information to the public by any means." This suggests that many online publishers might be protected under the statute even if not part of the "mainstream media."   

      However, one limitation on who is considered a journalist under the statute could leave many web-based reporters unprotected. The statute limits the term "journalist" to one who reports or gathers news "for a substantial portion" of his/her livelihood or for "substantial financial gain." Although the statute does not specify what constitutes substantial financial gain or a substantial portion of one's livelihood, it seems likely that casual bloggers and other amateur publishers who derive little or no income from their work would be excluded.

      What Information is Protected? 

      Texas' shield law protects any confidential or nonconfidential information obtained or prepared while acting as a journalist, as well as the sources of any such information. In addition, publication of any privileged information is not a waiver of the journalist's privilege. 

      How Strong is the Protection?

      Texas' shield law provides a qualified privilege, which means journalists may be compelled to reveal their sources or other information under certain circumstances. The strength of the privilege depends on the nature of the case:

      Civil: In a civil case, the party attempting to compel the disclosure can overcome the privilege only by showing all of the following in court:

      • All reasonable efforts have been exhausted to obtain the information from alternative sources;
      • The subpoena is not "overbroad, unreasonable, or oppressive;"
      • Reasonable and timely notice was given of the demand for the information;
      • The interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
      • The subpoena or compulsory process is not being used to obtain nonessential or speculative information; and
      • The information is relevant to the proper administration of the official proceeding for which the information is sought and is essential to the maintenance of a claim or defense of the person seeking the information

      Criminal: In criminal cases, the privilege does not extend to published information. Journalists may be compelled to disclose or testify regarding unpublished information obtained or created while gathering news, if the person seeking the unpublished information shows that:

      • All reasonable efforts have been exhausted to obtain the information from alternative sources; and
      • The unpublished information is essential to the case or is central to the investigation of a criminal case 

      Furthermore, journalists can be compelled to reveal their confidential sources if the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Disclosure may also be compelled if all other means of obtaining the source's identity have been exhausted and if the source:

      • Was seen by the journalist committing a felony;
      • Is a person who admitted to the journalist that he committed a felony; or
      • Is a person for whom probable cause exists that the person participated in a felony

      Constitutional Protection in Federal Court

      Federal courts in the Fifth Circuit, which encompasses Texas, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of confidential sources and possibly to non-confidential information collected during newsgathering.

      Who is Covered?

      The privilege clearly applies to traditional "reporters," like those working full or part-time for a newspaper or television news program, but the law is not clear on whether it applies to amateur and non-traditionalists journalists or others who publish information online. Texas courts have indicated that the privilege applies to freelance writers, but not to freelancers who publish only informally and sporadically.

      What Information is Protected?

      The reporter's privilege clearly applies to the identity of confidential sources, but whether it protects other non-confidential information is less certain. When information is sought from a reporter in a criminal case, there is no privilege for non-confidential sources (i.e., sources who did not give information in return for a promise of confidentiality) or other non-confidential information collected during newsgathering. In civil cases, the privilege may apply to non-confidential information, but the law is not clear.

      How Strong is the Protection?

      The reporter's privilege is qualified, meaning that a court may order you to reveal protected information if it finds that the need to reveal that information outweighs your interest in protecting it. As a practical matter, courts are more inclined to order disclosure when you are a party to the lawsuit in question, or when a criminal defendant seeks information in order to mount a defense.

      For more information on the reporter's privilege in the Fifth Circuit, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 5th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

      Jurisdiction: 

      Subject Area: 

      Virginia Protections for Sources and Source Material

      Note: This page covers information specific to Virginia. See the section on Protecting Sources and Source Material for more general information.

      Virginia does not have a shield law. Nevertheless, there may be other legal grounds for protecting your sources and source material in Virginia.

      Federal and state courts in Virginia recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering, whether or not the information is confidential. The privilege is qualified, meaning the party seeking information can overcome the privilege upon a sufficient showing of need.

      In addition, the Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Virginia courts do not recognize a common law or state constitutional privilege for journalists.

      Constitutional Protection in State and Federal Court

      Federal courts in the Fourth Circuit, which encompasses Virginia, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. Virginia state courts have followed the federal courts in adopting the reporter's privilege. The precise scope of the privilege is unclear.

      Who is protected?

      The courts have not expressly defined who is a "reporter" for purposes of the privilege, although they have applied the privilege to reporters and editors in traditional forms of media, including small and large newspapers. The CMLP is not aware of any federal or state cases in Virginia applying the privilege in an online context. Therefore, whether amateur and non-traditional journalists publishing online can take advantage of the privilege is an open question.

      What information is protected?

      The courts have not defined with precision what information is protected by the reporter's privilege. As a general matter, it appears to cover the identity of sources and unpublished information, both confidential and non-confidential, but the privilege is stronger with regard to confidential information.

      How strong is the privilege?

      The reporter's privilege is qualified, which means that a court may order you to reveal information covered by the privilege if the requesting party's need for it outweighs the policies favoring a privilege. In civil cases, in order to order disclosure, a court must find each of the following to be true:

      • The information is relevant;
      • The information cannot be obtained by alternative means; and
      • There is a compelling interest in the information.

      In criminal cases, the shield may only apply with regard to confidential information. As a practical matter, the courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium for the 4th Circuit and for Virginia.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

      Jurisdiction: 

      Subject Area: 

      Washington Protections for Sources and Source Material

      Note: This page covers information specific to Washington. See the section on Protecting Sources and Source Material for more general information.

      Washington state has a shield law that protects the identity of confidential sources and other materials collected or prepared in the newsgathering process, such as notes and outtakes. The state legislature adopted the shield law in 2007, and no courts have applied it yet, so so many of its provisions are open to interpretation. However, some preliminary guidance is possible. First, the law protects anyone who runs or works in a news-related capacity for an "entity" (more below) that regularly provides news to the public, including through any kind of online media. Second, the shield's protection is qualified, meaning that a court may order you to disclose protected information if the information is unavailable elsewhere and there is a compelling public interest in disclosure.

      Before the state legislature adopted the new shield law, Washington state courts recognized a common law (i.e., judge-made) privilege for reporters. Typically, when a legislature passes a specific law on a topic, such as a privilege for reporters, courts often say that the new statute takes the place of the common law on that topic and strips it of its force as law. While no court in Washington has said so, it seems unlikely that Washington courts will continue to recognize a common law privilege now that a shield law is in place. For more information on Washington's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Washington.

      Washington state courts do not universally recognize a "reporter's privilege" based on the First Amendment to the U.S. Constitution or the Washington Constitution. One unpublished appellate court decision, issued prior to the passage of the shield law, hinted that a privilege under the First Amendment might exist. If Washington courts were to recognize a constitutional protection for reporters, that protection would exist in addition to the protections given by the shield law, and it probably would function like the reporter's privilege recognized by the federal courts in Washington.

      Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.

      The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

      Shield Law

      Source and Statutory Text

      Washington's shield law, located at Wash. Rev. Code § 5.68.010, states in relevant part:

      (1) Except as provided in subsection (2) of this section, no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose:

      (a) The identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality; or

      (b) Any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime.

      (2) A court may compel disclosure of the news or information described in subsection (1)(b) of this section if the court finds that the party seeking such news or information established by clear and convincing evidence:

      (a)(i) In a criminal investigation or prosecution, based on information other than that information being sought, that there are reasonable grounds to believe that a crime has occurred; or (ii) In a civil action or proceeding, based on information other than that information being sought, that there is a prima facie cause of action; and

      (b) In all matters, whether criminal or civil, that:

      (i) The news or information is highly material and relevant;

      (ii) The news or information is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto;

      (iii) The party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources; and

      (iv) There is a compelling public interest in the disclosure. A court may consider whether or not the news or information was obtained from a confidential source in evaluating the public interest in disclosure.

      . . .

      (5) The term "news media" means:

      (a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;

      (b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; or

      (c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection (1) of this section.

      Who is Protected?

      The language of Washington's shield law is extremely broad. It covers the "news media," defined as

      Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.

      It also covers any "employee, agent, or independent contractor" who is working (or has worked) for one of these entities. While no Washington court has interpreted this language, it clearly applies to online publishing. This would cover owners, employees, freelancers, and (most likely) volunteers for one of these entities.

      A harder question is whether your website or blog qualifies as an "entity" that distributes news or information on a regular basis. If you publish only sporadically, then you likely fall outside the protection of the statute. More troubling, the meaning of "entity" is uncertain. The statute does not specifically require the entity to be formally organized, like a like a corporation, LLC, or nonprofit organization. But whether a court might read in such a requirement is less clear. Arguably, "entity" could refer to any platform for disseminating news or information, including a solo blog or website. Nevertheless, if you are operating in Washington, one of the benefits of creating a formal business entity would be increased certainty about coverage under the shield law.

      What Information is Protected?

      The Washington shield law protects confidential sources and any information collected "for potential communication to the public." This latter category would include unpublished materials, whether confidential or non-confidential, collected during your newsgathering activities.

      By publishing information received from a confidential source or obtained during newsgathering, you do not waive (i.e., give up) the protection for the source or other, unpublished materials.

      The shield law does not protect physical evidence of a crime.

      How Strong is the Protection?

      Washington's shield law is qualified, which means that a court may order you to disclose information under certain circumstances, even when you are covered by the statute (above). Specifically, a court will order you to reveal protected information if the party seeking your information can prove the following things by clear and convincing evidence:

      • The person seeking the information has a reasonable chance of succeeding in his/her case, even without the information sought;
      • The information is highly material (i.e., legally significant) and relevant;
      • The information is critical or necessary to the maintenance of the person's claim, defense, or proof;
      • The person seeking the information has exhausted all reasonable and available means to obtain it from alternative sources; and
      • There is a compelling public interest in disclosure -- on this factor, a court may consider whether or not the information was obtained from a confidential source in evaluating the public interest in disclosure.

      The same test applies in criminal and civil cases, and when the reporter is a party to the lawsuit in question. As a practical matter, however, the final factor ("compelling public interest in disclosure") will often weigh in favor of your disclosing information when the party seeking information is a criminal defendant trying to mount a defense. This factor will also weigh in favor of disclosure when your information is not confidential (i.e., not received in exchange for a promise of confidentiality).

      Constitutional Protection in Federal Court

      Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

      The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

      For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

      Privacy Protection Act

      The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.

       

      Jurisdiction: 

      Subject Area: 

      Access to Government Information

      This section of the legal guide outlines the wide-array of information available to you from government sources. These sources range from your local city council all the way up to the largest agencies in the federal government. In fact, you might be quite surprised at how much information is available to you. And the best part is that you generally don't need to hire a lawyer or file any complicated forms -- you can access most of this information simply by showing up or filing a relatively simple request. Moreover, you don't need to be a professional journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can make the information available to anyone in the world. For an impressive example of how some people are using the power of new information technologies in conjunction with government information, check out Adrian Holovaty's Chicagocrime.org, a browsable database of crimes reported in Chicago.

      Regardless of what you publish online, it is likely that at least one (if not many) of the information sources we discuss in this section will be valuable to you. For example, you might want to find out whether the drinking water coming out of your faucet contains pollutants (information that is likely contained in documents held by the Environmental Protection Agency or one of its state counterparts). Perhaps you'd like to know more about how your local school board makes decisions (information that you can get by attending school board meetings). Or perhaps you are concerned that a real estate developer may have been sued for fraud (information that is available by visiting the courthouse in person or accessing the court's electronic docketing system).

      Information from these government sources will be especially useful to you if you want to take your publishing activities beyond merely commenting on material posted by others. These sources can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on subjects of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section focusing on city government, which is largely based on meetings of the New York City Council.

      We should point out, however, that the information you gather from these government sources doesn't have to be limited to the actions of the government itself. Government bodies collect extensive information on individuals, corporations, and other organizations. Much of this information is available to the public. You just have to know where to look.

      The first thing you will need to consider is which government entity likely has the information you are seeking. Public access to government information extends to a broad range of government sources, including federal and state agencies, Congress and state legislatures, government boards and committees, and the courts. In fact, it might be the case that the information you are interested in is located in more than one place. A little advanced research on your part can go a long way when dealing with the government. Because different laws apply to different government entities, you will want to review each section of this guide that might apply to your situation. If you are not sure whether the information you seek is associated with a federal, state, or local government body, refer to the page on Federal, State, and Local Government Bodies for some helpful information.

      It is also worth bearing in mind that laws granting access to government information are only one of many important fact-finding tools in your information gathering toolbox. These laws can be very powerful, but their scope is limited to records and information available through government sources. For a broad overview of how you can investigate a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation.

      Information Held by the Federal Government

      The federal government is a sprawling and far reaching entity headquartered in Washington, D.C., but with agencies and offices in almost every part of the country. A number of important laws govern your access to information associated with the federal government.

      The most well known of these laws is the Freedom of Information Act ("FOIA"), which provides access to the public records of most departments, agencies, and offices of the federal government. But several lesser known laws are also important, including the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, the Federal Advisory Committee Act, which allows you to attend the meetings of boards and committees that advise agencies of the federal government, and the Presidential Records Act, which sets out the procedures you must follow to request records from the president and his or her close advisers.

      If you are seeking records held by a federal government agency, you should review the section on Access to Records from the Federal Government which describes FOIA and provides some practical advice on how to use the law to acquire government records. Keep in mind, however, that FOIA does not cover the President himself/herself, Congress, or the federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records, Access to Congress, and Access to Courts and Court Records sections of this guide, respectively.

      The federal government often acts through boards, committees, and other government "bodies." Examples include the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Housing Finance Board. A common feature of these agencies, boards, commissions, and other government bodies is that they meet as groups to deliberate or take action on public business. If you wish to attend these meetings, you will need to become familiar with a category of laws called open meetings laws. These important laws give anyone, including members of the traditional and non-traditional press, the ability to attend the meetings of many federal government bodies and to receive reasonable notice of those meetings. In many instances, they also entitle you to obtain copies of minutes, transcripts, or recordings at low cost. See the section on Access to Government Meetings for more information and practical advice.

      There are basically two types of federal government meetings you may wish to attend and each is governed by a different set of legal requirements. Federal agency meetings are governed by the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, such as the Federal Election Commission and the Federal Trade Commission. Federal advisory committee meetings, which are a strange hybrid type of meeting involving outside advisers tasked with giving advice to the federal government, are governed by the Federal Advisory Committee Act.

      Information Held by State and Local Governments

      Just as with the federal government, a number of important laws govern your ability to access information associated with state and local governments.

      Every state has some version of a "Freedom of Information" (FOI) law — sometimes called a "sunshine law" — that governs the public’s right to access state government records. These FOI laws help the public keep track of its government’s actions, from the expenditures of school boards to the governor's decision to pardon prison inmates. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals.

      If the information you are seeking is contained in records held by your state or local government, you will need to review the section on Access to Records from State Governments in order to understand how to make a request under the relevant state law. For example, the California Public Records Act and the New York Freedom of Information Law govern access to records in California and New York, respectively. In many states, local government records can also be requested under the state open records law. Unfortunately, public officials sometimes deny that they are required to turn over information, deny that the public has any right to information, or fail to provide information in a timely way. To ensure that you get the information you need, you should review the section on Practical Tips for Getting Government Records.

      If you are interested in attending the meetings of state or local government bodies, you should review the section on Access to State and Local Government Meetings. The most familiar examples of these kinds of government bodies at the local level include school boards, city councils, boards of county commissioners, zoning and planning commissions, police review boards, and boards of library trustees. At the state level, examples include state environmental commissions, labor boards, housing boards, and tax commissions, to name a few.

      Courts and Court Information

      The court system is yet another resource-rich place for you to access information. Your right to access the court system stems from the First Amendment, and has been expanded to give you the ability to attend almost all court proceedings and inspect public court records. The law provides important tools that you can use to help you understand the intricacies of a particular case, or watch how the court system performs. For example, you can use court records to check whether a doctor has previously been sued for malpractice, or to find the outcome of a criminal case.

      You should first determine whether you need to access the information at the state or federal level. Once you’re armed with that knowledge, visit the pages that discuss access to court proceedings in federal court or state court, for information on your right to attend trials and other court proceedings. If, on the other hand, you want to review court records, such as legal complaints, motions, and other filings, visit the page on Federal Court Records or State Court Records, which describes your right to access court records and provides information on why your request may be denied, and how to appeal a denial. While there is no guarantee that you will get every court record or attend every court proceeding you desire, we've put together some tips that will help ensure that you take full advantage of the wealth of information available through state and federal courts. See the page discussing Practical Tips for Accessing Courts and Court Records for more information.

      You may also wish to talk with the individuals associated with a court case. Visit the page on Access to Jury and Trial Participants to understand your ability to contact those who participated in the court proceeding such as the judge, lawyers, parties, witnesses, and jurors.

      Getting Started

      If, after reviewing the information in this section, you are still not sure where to start, you can always just browse one of the topics listed below:

      • Access to Government Records: Describes federal and state freedom of information laws and provides practical advice on how to use these laws to acquire government records.

      • Access to Government Meetings: Provides an overview of federal and state open meetings laws and explains how to assert your right to attend meetings held by federal, state, and local agencies, boards, committees, and other government bodies.

      • Access to Congress and the President: Outlines the special set of rules that govern access to Congress and Presidential records.

      • Access to Courts and Court Records: Provides an overview of federal and state laws that grant you the right to access federal and state court records and court proceedings.

      Subject Area: 

      Access to Government Records

      "Freedom of Information" ("FOI") is a general term for the laws — sometimes called "sunshine laws" — and principles that govern the public’s right to access government records. FOI helps the public keep track of its government’s actions, from the campaign expenditures of city commission candidates to federal agencies’ management of billions of dollars in tax revenues. Without FOI, information-seeking citizens would be left to the whims of individual government agencies, which often do not give up their records easily.

      Using freedom of information laws is a simple, and potentially powerful, way of obtaining information about the activities of federal, state and many local governments. You don't need to hire a lawyer, and no complicated forms are involved—requests can be made in a simple letter. And you don't need to be a journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can post the information and make it available to anyone in the world.

      Your request can yield information that has a real impact on your community. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing multiple requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents she received and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals. Similarly, in 2006, the nonprofit organization Public Employees for Environmental Responsibility used the Freedom of Information Act to get documents that revealed that genetically-modified crops had been sown on thousands of acres in a federal wildlife refuge. A coalition of nonprofits used this information to sue the U.S. Fish and Wildlife Service for violating federal environmental law. For other examples of the benefits of sunshine laws, see the National Security Archive's 40 Noteworthy Headlines Made Possible by FOIA, 2004-2006.

      So now that we've convinced you of the value of acquiring government records, it's time to dig into the relevant sections that govern the information you are interested in. Before you start, however, you'll want to first determine whether the information you seek is held by a federal or state governmental body. This is important because different freedom of information laws apply to the federal government and various state government entities. If you are not quite sure whether you should review the federal or state sections of this guide, you might find the page on Identifying Federal, State, and Local Government Bodies helpful.

      The following pages in this section will help you to understand and use freedom of information laws to acquire government records:

      Subject Area: 

      Access to Records from the Federal Government

      If you are seeking records held by the United States government, you will need to become familiar with the Freedom of Information Act ("FOIA"), which was enacted in 1966. FOIA provides access to the public records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President. FOIA does not cover the sitting President, Congress, or the federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records, Access to Congress, and Access to Courts and Court Records sections of this guide, respectively.

      FOIA requires federal agencies to:

      1. Provide access to their records and information, barring certain exceptions;
      2. Suffer penalties for refusing to release covered information;
      3. Appoint a FOI officer charged with responding to information requests; and
      4. Publish agency regulations and policy statements, including their rules for handling FOIA information requests, in the Federal Register.

      The heart of FOIA is a "FOIA request": a written notice to the FOIA officer of a federal agency stating which records you are seeking. You should be forewarned, however, that although FOIA is a powerful tool for getting government information, it involves a rather complicated set of procedures. Before you file a request, you should spend some time reviewing each of the sections listed below. Click on one of the following sections to get started:

      Subject Area: 

      Who Can Request Records Under FOIA

      The Freedom of Information Act ("FOIA") gives the right to request access to government records to any person for any reason, whether the person is a U.S. citizen or a foreign national. Requests can be made in the name of an individual or an organization (including a corporation, partnership, or public interest group). Individuals have the same access rights as professional journalists, though journalists who work for established media organizations sometimes receive better treatment from records-keepers. Individuals probably won’t qualify for some of the perks afforded to media professionals, such as fee waivers and expedited processing, but they are just as capable of using records requests to reveal information that is important to the public. In fact, according to one study, more FOIA requests come from ordinary citizens than from professional media organizations.

      Filing a request under FOIA may seem daunting at first, and it often is not easy to figure out how and where to get the information you seek. However, this legal guide should help you navigate FOIA so you can gather valuable government information that you can use to inform your fellow citizens and the world at large.

      Subject Area: 

      What Records Are Available Under FOIA

      FOIA covers records from all federal regulatory agencies, cabinet and military departments, offices, commissions, government-controlled corporations, the Executive Office of the President, and other organizations of the Executive Branch of the federal government. 5 U.S.C. § 552(f). For example, the Environmental Protection Agency, the Defense Intelligence Agency and the Food and Drug Administration are all covered by FOIA. To browse a list of executive agencies, visit the U.S. Government Manual or the LSU Libraries Federal Agency Directory. Links to a number of federal agencies' FOIA websites are available here.

      FOIA does NOT apply to the President, Congress (or members of Congress), or the federal courts and federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records, Access to Congress, and Access to Courts and Court Records sections of this guide, respectively. Some federally funded organizations may not be covered by FOIA if the government does not control or regulate their operation. However, any of those organizations’ records that are filed with federal agencies may be covered. No private persons or organizations are covered by FOIA.

      State and local governments are not covered by FOIA, including federally-funded state agencies, but all states and some local governments have passed freedom of information laws. Requests for information from a state or local governments must be made under that jurisdiction's freedom of information legislation. For more information on selected states, see the Access to Records from State Governments section of this guide.

      All non-exempt electronic and physical records held by federal agencies must be disclosed under FOIA. Federal agencies covered by FOIA are permitted to withhold documents, or redact portions of documents, if the records (or information in the records) are covered by one of the nine exemptions established by FOIA. One of the most common exemptions relied on the exemption for national security.

      The following section set out the essential information you need to know about the kinds of documents you can access using FOIA, so that you can tailor your request or, if your request is denied, to consider whether and how to this decision might be challenged.

      • Finding and Getting the Records You Seek: Your first task should be to determine where the records you are interested in are located and if the information you want is already publicly available.

      • Types of Records Available under FOIA: While the types of records available under FOIA is quite broad, FOIA may not apply to everything you want. Review this section to determine what types of records you can request.

      • FOIA Exemptions: Before making a request, you should determine whether the records you are interested are be covered one of FOIA's exemptions, which could result in the agency denying all, or part, of your request.

      Subject Area: 

      Finding and Getting the Records You Seek

      There are a number of ways that you can receive government records. The easiest method is to access an agency's online “reading room” which provides free access to certain government documents. If you can't get what you want through a reading room, you should carefully consider how (and in what form) you want the responding agency to provide the documents to you.

      Before you jump into filing a FOIA request, however, you should spend some time researching which agency or agencies have the records you want. There is no central depository for federal government information, and each agency has its own office for handling FOIA requests. This can make your search rather difficult, but there are a number of resources that may help you in determining which federal entities are likely to have the information you seek:

      • The United States Government Manual contains a list of federal agencies and a brief description of their functions. The Manual also contains the addresses and telephone numbers for each agency.

      • Online Directories to Government Information provide information on which agencies have responsibility for various subject areas.

      • The Library of Congress provides links to congressional committees, publications, and other information. While Congress is not subject to FOIA, the Library of Congress has extensive records on many government agencies.

      • The National Archives and Records Administration contains extensive records from across the federal government, including the historical records of federal agencies, congressional bodies, and courts.

      Online Reading Rooms

      FOIA requires that all federal agencies maintain online reading rooms that provide electronic versions of their regulations, policy statements, and records. Reading rooms are the easiest method of obtaining certain types of government information, because accessing them requires only a few clicks on an agency’s website. Therefore, you should always start by checking to see if the records you are seeking are already available in the reading room. This will save you the time, energy and money of making a FOIA request or otherwise attempting to get information. The type and amount of information available in the reading rooms vary greatly by agency, but many include a number of useful records.

      If you can't find the agency's online reading room from their homepage, try searching for “(agency name) reading room” (most agency web sites have a section labeled specifically as a “reading room,” so you should be able to find it with a simple online search). It can also be helpful to run the same search at FirstGovSearch.gov, the U.S. Government Printing Office’s online directory of government information.

      Here is a list of online reading rooms for some of the government’s most visible agencies and offices:

      Other Means of Getting Records

      If you can't find the records you are seeking in the agency's reading room, then you will need to request the records informally or file a FOIA request. See the section on Requesting Records Under FOIA in this guide for more information.

      In your request you can ask to receive either an electronic copy or a physical copy of the records. If the records already exist in the form that you request them in, then the agency must generally provide the records in your preferred form. However, if you request an electronic copy of records that only exist in paper form, then the agency must only provide you with an electronic copy if it is reasonably able to do so, meaning that the record is "readily reproducible" in the alternate format. If you would prefer a certain type of electronic format, the agency need only provide the records in that specific format if it is reasonably able to do so. See 5 U.S.C. 552(a)(3)(B).

      Depending on the agency, physical copies of records may usually be mailed or faxed to you, while electronic copies of records may either be e-mailed to you or sent to you on a CD-ROM or other disk drive. Because of the various ways you can receive the records, it is very important that you specify your preferred method when you initially file your request.

      Subject Area: 

      Types of Records Available under FOIA

      Any records created, possessed, or controlled by a federal regulatory agency, cabinet and military departments, offices, commissions, government-controlled corporations, the Executive Office of the President, and other organizations of the Executive Branch of the federal government must be disclosed unless the information contained in the records is covered by a specific FOIA exemption. FOIA only extends to existing records; you cannot compel an agency to create or search for information that is not already in its records. Nor can you use FOIA to compel agencies to answer your general questions under FOIA. However, you sometimes can agree to accept information in an abbreviated form rather than the actual documents.

      Agencies are required to make the following records available for public inspection and copying without a formal FOIA request via the Federal Register:

      • final opinions made in the adjudication of cases;
      • unpublished policy statements and agency interpretations;
      • staff manuals that affect the public;
      • copies of records released in response to previous FOIA requests have been or will likely be the subject of additional requests; and
      • a general index of released records determined to have been or likely to be the subject of additional requests.

      If you are interested in records that don't fall into one of these categories, you will need to file a FOIA request. See the section on How to Request Records Under FOIA in this guide for more information.

      Physical Records

      Physical records of any description can be requested under FOIA. Traditional typed documents, as well as maps, diagrams, charts, index cards, printouts and other kinds of paper records can be requested. Moreover, access under FOIA is not restricted to information recorded on paper. Information recorded in electronic media (see further below), audio tapes, film, and any other medium can be requested. The Society of Professional Journalists' A-Z list of covered documents is a great place to start if you aren’t sure if the record you want is covered by FOIA.

      Electronic Records

      The increasing availability of electronic versions of government records is one of the most important developments in public access to government information. “E-records,” as these records are sometimes called, generally are simpler and quicker to obtain, easier to analyze, and otherwise better suited to citizen use. With the invention of online reading rooms and FOIA sections of agency websites, many records take no more effort to access than personal e-mail. Information from e-records can be organized into databases, searched, and plugged into tables and charts, making it possible to perform in-depth analysis in much less time—which opens up new possibilities for public use of government information.

      Besides quicker access and (possibly) cheaper reproduction costs, electronic records have several advantages over their paper-based counterparts. E-records can be compiled into databases for easy searching and comparison. They are easier to sort through quickly, possibly making it easier to find patterns and discrepancies. This can make the information-gathering process significantly simpler and more efficient, which is a great help to those who don’t have the time and resources to mount in-depth investigations. For more information on ways to use electronic records, the Poynter Institute has an online bibliography of computer-assisted reporting (CAR) primers and other sources of information.

      Electronic records are becoming more and more prevalent as the government continues to expand its use of technology. Because of this, any record you seek could be available in electronic format. Whether you’re talking directly to a records-keeper or filing an official FOIA request, you should consider asking for electronic copies of the records you are requesting. Depending on the agency, you may be able to specify whether you receive e-records by e-mail attachment, CD, or other medium. Some states, for instance, allow the requester to receive records in the format of their choice. An agency must make requested records available in electronic format at the request of a person if the record is readily reproducible by the agency in electronic format (§ 552(a)(3)(B)).

      Congress extended the Freedom of Information Act to electronic records by enacting the Government Printing Office Electronic Information Enhancement Act of 1993 ("Electronic Information Act") and the Electronic Freedom of Information Act Amendments of 1996 ("E-FOIA"). The Electronic Information Act requires government to maintain an online directory of Federal electronic information, including the Congressional Record, the official record of Congress’ proceedings and debates, as well as the Federal Register, which contains agencies’ regulations and policy statements. E-FOIA requires that government agencies:

      • prepare electronic forms of records and record indexes;
      • offer access to those records;
      • have a FOIA section of their websites, on which they must post agency regulations, administrative opinions, policy statements, staff manuals, and other records;
      • identify common records requests and make those records available online;
      • create online reading rooms that include information available in traditional reading rooms; and
      • create reference guides for accessing agency information, which must be available online.

      Subject Area: 

      FOIA Exemptions

      While the records you've requested might be covered by FOIA, the information contained in the records may relate to certain subject areas that are exempt from disclosure under FOIA. FOIA contains nine exemptions that might impact your request:

      1. Classified Documents--information classified in the interests of national security or foreign policy can be withheld (§ 552(b)(1)(A)).

      2. Internal Agency Personnel Rules-- information relating to internal agency practices is exempt if it is a trivial administrative matter of no genuine public interest (e.g., a rule governing lunch hours for agency employees) or if disclosure would risk circumvention of law or agency regulations (e.g., an employee's computer user id) (§ 552(b)(2)).

      3. Information Exempt Under Other Laws--an agency is prohibited from disclosing information that protected from disclosing under other federal laws. For example, federal tax laws prohibit the disclosure of personal income tax returns (§ 552(b)(3)).

      4. Trade Secrets or Confidential Commercial Information--this exemption applies to trade secrets (commercially valuable plans, formulas, processes, or devices) and commercial information obtained from a person (other than an agency) that would be likely to harm the competitive position of the person if disclosed (such as a company's marketing plans, profits, or costs (§ 552(b)(4)).

      5. Internal Agency Memoranda and Policy Discussions--in order to protect the deliberative policymaking processes of government, internal agency memoranda and letters between agencies discussing potential policy options are exempted from disclosure (§ 552(b)(5)).

      6. Personal Privacy--private data held by agencies about individuals is exempt if disclosure would constitute a clearly unwarranted invasion of privacy, but a person is not prevented from obtaining private information about themselves (§ 552(b)(6)).

      7. Law Enforcement Investigations--this exemption allows the withholding of information that would, among other things, interfere with enforcement proceedings or investigations, deprive a person of a right to a fair trial, breach a person's privacy interest in information maintained in law enforcement files, reveal law enforcement techniques and procedures, or endanger the life or physical safety of any individual (§ 552(b)(7)).

      8. Federally Regulated Banks--information that is contained in or related to reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, are exempt (§ 552(b)(8)).

      9. Oil and Gas Wells--geological and geophysical data about oil and gas wells are exempted from disclosure (§ 552(b)(9)).

      It is beyond the scope of this guide to describe each exemption in exhaustive detail. Suffice it to say, most FOIA disputes involve disagreements over the scope and application of these exemptions. For more information on each exemption, see the Reporters Committee for Freedom of the Press's excellent booklet on How to Use the Federal FOI Act.

      Other than exemption number 3 -- which relates to information exempt under other federal law -- these exemptions are permissive, not mandatory. This means that FOIA allows an agency to refuse to disclose otherwise covered records, or to redact portions of documents, but it does not compel the agency to do so. For more on the discretionary nature of these exemptions, see the U.S. Department of Justice's FOIA Guide.

      An agency must state which exemption it is relying on when it withholds documents or redacts information. In addition, agencies are required to disclosure all non-exempt information, even if it is contained in a record that contains other information that is exempt from disclosure. In other words, if an exemption only applies to a portion of a record, the agency must release the remainder of the document after the exempt material has been redacted.

      If you believe an agency has improperly used one of these exemptions to deny your request, see the section of this guide on What Are Your Remedies Under FOIA which describes the courses of action you can take to enforce your rights under FOIA.

      Subject Area: 

      How to Request Records Under FOIA

      Before making a FOIA request, you should first try to obtain information by quicker, less formal means. You can access many records without going throught the formal FOIA request process. The easiest way to access some records is via the Internet, through the Federal Register or agencies’ online reading rooms.

      FOIA requires agencies to publish the following information in the Federal Register:

      1. Descriptions of the agency's organizational structure and the addresses of offices where the public may obtain information
      2. General descriptions of the agency's operation
      3. FOIA procedures and descriptions of forms
      4. Substantive rules of general applicability and general policy statements

      Reading rooms are typically accessible from the agency’s website. For more information on reading rooms, refer to the legal guide’s section on Finding and Getting the Records You Seek. Agencies also maintain physical reading rooms, which could be useful if you are able to visit their offices.

      If the information is not available online, you can try simply asking for it. Agencies are required to make the following records available for public inspection and copying without a formal FOIA request:

      • final opinions made in the adjudication of cases
      • unpublished policy statements and agency interpretations
      • staff manuals that affect the public
      • copies of records released in response to previous FOIA requests that are of sufficient interest to the public that they will likely be the subject of additional requests
      • a general index of released records determined to have been or likely be the subject of additional requests

      Explain what records you’re seeking and that you’re prepared to file an official request if necessary. A record-keeper familiar with FOIA might honor a request made in-person or via telephone, saving both you and the agency time and (possibly) money. If that doesn’t work, you can try speaking to the agency’s FOIA officer.

      If you cannot access the records through these informal means, you then will need to file a formal FOIA request. Click on one of the links below to get started:

      Subject Area: 

      Filing a FOIA Request

      Written requests are the only way to legally assert your FOIA rights. These should be mailed, faxed, e-mailed, or hand-delivered to the relevant agency’s offices, depending on which methods the agency allows. A quick online search of the "agency's name" and "FOIA" should provide you with specific information about how the particular agency accepts FOIA requests. If you can't find the information through an online search, check the Federal Register, which should include this information.

      A FOIA request should be addressed to the agency's FOIA officer or the head of the agency. It must include:

      1. Your name and contact information, including your address if you want the records mailed to you or your e-mail address if you are requesting that electronic records be e-mailed to you.
      2. A statement that you are seeking records under the Freedom of Information Act.
      3. A description of the record(s) you are seeking. The only requirement is that you “reasonably describe” the records. Basically, this means that you must give enough information that a record-keeper would be able to find the records without an undue amount of searching. It is generally advisable to make the request as specific as possible, so if you know the title or the date of a particular document, or can precisely describe the class of documents you seek, you should set out these details. Being specific helps you avoid paying fees for records that you actually do not need and helps to expedite your request. See the section on What Records Are Covered in this guide for more information on the types of records you can request.

      In addition to the required elements listed above, you might want to include some of the following additional information in your request:

      • Your preferred method of contact for any questions about the record(s) you are seeking, whether it be mail, e-mail, or telephone.
      • Your preferred medium for receiving the record(s), such as paper, CD-Rom, microfiche, e-mail attachment, etc. (note that you are not always guaranteed to receive the records in your preferred format, but the agency will attempt to honor such requests if possible). See the section on Requesting Electronic Records in this guide for more information.
      • You do not need to tell the government organization why you want the information; every person has a right to request records regardless of his or her profession. That said, you may want to inform the record-keeper that you plan to use the information to publish on a matter of public interest.
      • A request for a fee waiver or expedited review for your request, if applicable, as discussed in the Costs and Fees and Time Periods under FOIA sections of this guide.
      • The maximum fee you are willing to pay for your record(s). You should indicate that you wish to be contacted if the charges will exceed this amount.

      The Reporters Committee for Freedom of the Press and the The U.S. Department of State both offer forms that will automatically generate a FOIA request for you. These can be an excellent way to get started.

      Where to Send Your Request

      Your FOIA request should be addressed to the relevant agency's FOIA officer or the head of the agency. The U.S. Department of Justice has a fairly comprehensive list of FOIA contacts at federal agencies. If the agency you want isn't listed there, you can usually find the information easily by conducting a quick web search; just type in "agency's name" and "FOIA contact."

      If you are unsure of which agency to send your request to, the US Government Manual may be of assistance. You will likely receive a faster response if you make your request in accordance with the agency's own FOIA regulations (these can be viewed in the Code of Federal Regulations), but the above minimum requirements are sufficient to make a valid FOIA request.

      Subject Area: 

      Time Periods under FOIA

      Technically, government organizations must respond to a FOIA request with a denial or grant of access within 20 business days. Note that the agency must only respond within 20 days; it does not have to deliver the records within the 20-day time period. The time period does not begin until the proper agency or office actually receives your request. Furthermore, under the new 2007 FOIA amendments, the agency may exceed the 20-day time limit if it needs to request more information from you in order to process your request.

      Agencies may extend this time limit by up to 10 additional working days (they must informing you they are doing so) if one of the following "exceptional circumstances" exists: the record-keeper must search an extraordinary amount of records; the search involves records from multiple offices; or the search involves records from multiple organizations. See the FOIA Guide's section on time limits for a more detailed explanation. If your request cannot be fulfilled within these time periods, the agency may ask you to reasonably modify your request or allow for an alternative time frame.

      Realistically, many agencies do not comply with these time limits. Some agencies may have a large backlog of requests, and they are usually permitted to treat requests on a "first come, first served" basis as long as they devote a reasonable amount of staff to responding to the requests. These agencies generally have a processing system that allows simpler requests to be handled quickly so that these requests do not have to "wait in line" behind more complex requests.

      However, as of December 1, 2008, FOIA will be amended to require that agencies waive all search and duplication fees if they fail to comply with time limits and none of the "exceptional circumstances" listed above exist. It is yet to be seen if this will speed up agencies' response times.

      Expedited processing

      FOIA provides for requests to receive “expedited review” if the request meets certain requirements. Generally speaking, you will be entitled to expedited treatment if health and safety are at issue or if there is an urgent public interest in the government activity at issue.

      If you think there is a compelling reason why you need the information sooner than the normal period under FOIA, you should clearly explain your reasons in your initial FOIA request. Agencies must decide whether or not to grant expedited processing within 10 calendar days of the request. Aside from these specific circumstances listed above, agencies may use their discretion in deciding whether or not to grant expedited review. So, it doesn’t hurt to ask even if you don’t meet the requirements.

      You should also check the individual agency's requirements to see if they allow other types of requests to receive expedited treatment. The Department of Justice, for instance, offers expedited review “for requests concerning issues of government integrity that have already become the object of widespread national media interest” or “if delay might cause the loss of substantial due process rights,” (see the DOJ reference guide section on expedited processing).

      Checking the Status of Your Request

      Under the 2007 FOIA amendments, the agency must provide you with a tracking number if your request will take longer than 10 days to process. Then, if you haven't heard back from an agency or are unsure about the status of your request, you can use the tracking number to find out more information. Each agency is required to have at least one "FOIA Requester Service Center" that can give information about the status of pending FOIA requests. The agency must tell you the date that it received your request and must give an estimated date that it will complete your request. The centers can generally be contacted by mail, e-mail, or telephone.

      If the deadlines have passed and you haven't been able to get any information from the agency about the status of your request, you should review this guide's section entitled What Are Your Remedies Under FOIA to see what your options are.

      Subject Area: 

      Costs and Fees

      Federal agencies are allowed to charge “reasonable” costs for responding to your FOIA request. This typically includes fees for the time the record-keeper spends searching for the correct documents as well as the cost of duplicating those documents. See 5 U.S.C. 552(a)(4)(A).

      FOIA breaks down requesters into three categories for determining fees:

      • Commercial use requesters, who must pay all fees for search, duplication, and review
      • Requesters from the professional media, educational institutions, and scientific institutions, who do not have to pay search fees and only pay duplication costs after the first 100 pages
      • All other requestors, who pay search fees after the first two hours and duplication costs after the first 100 pages

      Note that this means that small requests should always be free as long as the information is not intended for commercial purposes. Also, you should always be as specific as possible when describing the documents in your initial FOIA request. This will reduce the amount of time that the record-keeper must spend searching for the documents, which will potentially save you money.

      Non-traditional journalists generally will fall into the last category -- and thus may be on the hook for search fees -- even if they intend to publish the information in blogs, websites, or other media. If you are not associated with professional media, you can always request that you should be considered under the second category because of your intent to publish. The New FOIA Reform Act, which goes into effect in December 2008, seems to broaden the scope of the "professional media" category. Under the new amendment, a person can be considered part of the news media if he or she gathers information that is of public interest, creates a distinct work, and distributes that work to an audience. However, the Reform Act cautions that this is not an all-inclusive category, so it remains to be seen if bloggers and other citizen journalists will be able to benefit from fee waivers generally only reserved for "professional" media. We've been following this issue in our blog, and you can read more about the new definition here.

      The Reporters Committee for Freedom of the Press's FOIA Guide breaks down some of the actual fees you can expect to pay:

      Search fees generally range from $11 to $28 per hour, based on the salary and benefits of the employee doing the search. Fees for computer time, which are described in each agency’s FOI regulations, vary greatly. They may be as high as $270 per hour. Photocopying costs are normally between 3 and 25 cents per page.

      If you think your request could involve a significant amount of search time or copying, make sure your FOIA request includes a limit on the fees you’re willing to pay. You may also want to ask in advance for an estimate of what the expected fees may be.

      Here are some additional things to keep in mind when dealing with fee issues:

      • Agencies can charge search fees even if they don’t find any documents that satisfy your request, since the futile search still took time.
      • As long as you aren’t requesting the information for commercial purposes, agencies cannot charge you for time they spend deciding whether documents should be exempt or time they spend blacking out restricted information from the documents.
      • Organizations can’t require you to pay in advance if the expected fee is less than $250 and you don’t have a prior history of failing to make payments with the organization.
      • Under FOIA, organizations are required to publish fee schedules in the Federal Register. An organization’s FOI officer should be able to provide you with the schedule, though some are available on organizations’ websites. The fee schedule includes information about how much the particular agency charges for searching, copying, etc.
      • You can always try asking the organization to waive or reduce fees, even if you haven't formally requested a fee waiver.

      Fee waivers and fee reductions

      Under the Freedom of Information Reform Act of 1986, your FOIA requests could be eligible for total or partial waiver of fees if you can show that the disclosure of the information is in the public interest—even if you aren’t a professional journalist. This requires that you specifically request a waiver or reduction of fees and explain why you think the public has an interest in understanding the information. See the DOJ's FOIA Guide for more information about the "public interest" fee waiver. You also must explain any financial interest you have in the information, though a financial stake in publishing the information -- such as if you are paid to blog -- should not pose a problem.

      Agencies consider fee waiver requests on a case-by-case basis. You can appeal fee or waiver decisions in the same way you appeal request denials. See the section on What Are Your Remedies Under FOIA in this guide for more information.

      Subject Area: 

      What Are Your Remedies Under FOIA

      You have several options if your FOIA request is denied in whole or in part. First, you can attempt to resolve informally any disputes you have with the responding agency. If informal resolution fails, you should appeal the denial within the relevant agency before taking any other action. If your appeal is unsuccessful and the agency withheld the information because it is classified, you can apply to have the information declassified. If these options have failed to resolve the dispute, you can seek mediation through the newly authorized FOIA ombudsman or file a lawsuit in court to enforce your rights under FOIA.

      Each of these options is described briefly in this section.

      Informal Resolution

      The simplest -- and often most effective -- remedy is to seek informal resolution of the dispute. Delays are frequently due to the overworked nature of most FOIA officers. Your offer to "revise" or "narrow" the scope of your request can go a long way toward getting faster, and better, treatment of your request. If you revise your request, be sure to make clear that you willingness to compromise is not considered a "new" request by the agency (a new request will start the FOIA clock running again). If the agency tells you that the records don't exist, ask them to describe their search methodology. Perhaps they aren't looking for the right things or in the right places. It might also help if you offer to resolve fee or fee waiver issues by paying a small amount.

      While you engage in informal resolution be sure and keep records of all of your contacts with the agency. Track all time and response deadlines carefully.

      Appealing within the Relevant Agency

      If the agency denies your request or does not respond within the required time period, you can appeal to the agency's FOIA Appeals Officer. If the agency sent you a denial letter, it should set out the agency's appeal procedures. Take special note of the time limitation for appeals, which are usually around thirty days. If you haven't received any response from the agency (an excessive delay in complying with a request constitutes a denial under FOIA) you should send your appeal to the head of the agency.

      Appeal letters can be used to challenge the agency's failure to respond in a timely fashion, a decision not to release records in whole or in part, the adequacy of the search used to locate responsive records, and the agency's refusal to grant you a fee waiver.

      In your FOIA appeal letter you should:

      • Cite section 552(a)(6) of FOIA and clearly list your grounds for appeal;
      • Attach copies of the original request letter and the denial letter;
      • Take some time to explain the reasons why the denial should be reconsidered (for example, because the exemption does not properly apply to the document, or because the agency should waive the exemption in the current case); and
      • State that you expect a final ruling on your appeal within 20 working days, as required by FOIA.

      Sample appeal letters can be found on the Reporters Committee for Freedom of the Press' website and at the National Security Archive.

      Make sure you are familiar with the exemptions to FOIA so you can argue that the records you are seeking are not or should not be exempted. See the section on FOIA Exemptions in this guide for more information.

      If the agency denies your appeal or does not respond within 20 days, you may file a lawsuit in federal court (see below).

      Declassification

      If the agency denied your request because the information is classified (i.e. the agency relied on the national security exemption), you can make a separate request for mandatory declassification review of the information. You can learn more about declassification review procedure by going to the Reporters Committee for Freedom of the Press' FOIA Guide.

      Mediation

      Currently there is no mediation available for FOIA disputes. However, the Open Government Act of 2007, which amends FOIA, provides for the establishment of a new FOIA ombudsman, the Office of Government Information Services, to mediate such disputes. There is some uncertainty about whether the Office will be an organ of the more independent National Archives and Records Administration or the Department of Justice (which defends lawsuits against agencies that refuse to furnish requested documents) (see this Washington Post article and Senator Leahy's Senate address on the issue).

      Once the situation is clarified, we will update this section with the procedures for instituting FOIA mediation.

      Filing a Lawsuit

      If your request is denied, and your internal appeal does not reverse this decision, you may sue the agency in the United State District Court in your state of residence, in the state where the records are located, or in the District of Columbia. It is generally recommended that you retain an attorney to bring such a suit. If your lawsuit is "substantially successful", the agency will be ordered to pay your attorney's fees. See the section in this guide on Finding Legal Help for help with hiring lawyer or getting other assistance.

      However, you have the right to appear on your own behalf in court by filing a complaint pro se. If you decide to do this, you will find the Reporters Committee for Freedom of the Press' sample complaint for a FOI records denial and Public Citizen Litigation Group's Sample FOIA Litigation Documents very useful.

      Obtaining records through legal action can be a costly and drawn-out process. Some lawsuits over FOIA denials can last more than a year. If you assert that there is a public interest in your timely access to the records, the court could speed up your case through “expeditious consideration.”

      Lastly, keep in mind that if you file a lawsuit, you must do so within six years from the date of your initial FOIA request, even if you receive no response or an incomplete response from the agency.

      Subject Area: 

      Access to Records from State Governments

      You can access a vast number of state government records by using your state's freedom of information law. All fifty states and the District of Columbia have freedom of information laws granting public access to state government records, most of which are based at least in part on the federal FOIA. However, the laws can vary widely from who can make the requests, to which government body is required to provide access to its records, to the formalities a request must meet.

      Choose your state from the list below for state-specific information on accessing each state's public records. (Note: This guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

      Subject Area: 

      Access to Public Records in Arizona

      Note: This page covers information specific to Arizona. For general information concerning access to government records see the Access to Government Records section of this guide.

      Anyone can inspect or copy all records maintained by any Arizona public body during office hours, pursuant to Arizona law, §§ 39-101-39.161. Generally you don't have to give an explanation, unless the records are to be used for commercial purposes. If so, you will have to state that use and the Governor can, by executive order, prohibit their release.

      If the records are released for a commercial purpose, then you may also be charged a portion of the cost for getting the copies, a fee for time, materials and personnel, and commercial market value of the reproduction, pursuant to 39-121.03.

      If you have a commerical purpose and don't say so, you may have to pay damages up to three times the amount that would normally be charged, plus costs and attorney fees. So, if you have a commerical purpose for the records, make sure you say it when requesting the records!

      What Records Are Covered in Arizona

      What Government Bodies Are Covered

      You should be able to request records from any any subdivision of the state, county, municipality, school district, or any committee or subdivision supported by or spending state money. Any person elected or appointed to any public body is subject to the open records law. Any records they maintain on their offical activities or any activities supported either by state money or a state political subdivision are considered public, under § 39-121.01.

      What Types of Records Can Be Requested?

      If records aren't available online and you aren't able to go to the office, you can request the records to be mailed to you. However, the record custodian may request advance payment for copying and postage, so be ready to pay up front.

      As of 2010, you can now request budgets of charter schools, actions of the State Board of Dental Examiners, and records of any abortions and/or abortion complications performed at any medical facility in the state. You can also access any contract that involves state funds online. 

      Any expense reports by political parties concerning campaign expenses are now public.

      Exemptions

      Any agency that denies your request must furnish an index of records that have been withheld and the reason for each — but only if you ask for it. The department of public safety, the department of transportation motor vehicle division, the department of juvenile corrections and the state department of corrections are exempt from this requirement.

      Certain records relating to "eligible persons" (peace officers, justices, judges, public defenders, prosecutors, probation officers, law enforcement, national guardsmen, and anyone protected by court order) are exempt from disclosure pursuant to § 39-123. You have no right of access to any of the following records, if it relates to an eligible person:

      • The home address or home telephone number, unless the office gives written consent or  the record's custodian finds that a release would not create a reasonable risk of injury or damage to property.
      • A photograph of any eligible person, unless the officer has been arrested or formally charged with a misdemeanor or felony, or if you work for a newspaper and you are requesting the record for a "specific newsworthy event." This won't apply if the officer is working undercover or if disclosure is not in the state's best interest. (This prohibition doesn't apply if: the picture is being used to make a complaint against the officer; if obtained from a source other than the law enforcement agency; or, the officer is no longer employed by the state.)

      Any law enforcement agent who improperly discloses this information is guilty of a felony, so be wary if any officer gives you this information.

      The law also exempts all archaeological discoveries and risk assessments of any energy, water or telecommunications infrastructures.

      As of 2010, you no longer can access the names of any indivduals/firms who are applying for government contracts until the contract is complete. Also, all working papers and audits are exempted.

      The Arizona Court of Appeals has indicated that trade secrets contained in public records may be protected by the confidentiality exemption to Arizona's public records laws.  Phoenix Newspapers, Inc. v. Keegan, 35 P.3d 105, 112 (Ariz. Ct. App. 2001).

      How to Request Records in Arizona

      Making the request

      The law doesn't require any specific way of requesting records, so long as you request them during normal office hours. If the custodian doesn't respond to you promptly or give you an index when you ask for one, the law deems your request "denied" and you may pursue other remedies.

      Payment

      The custodian of the records may charge you for access, but the law doesn't specify any amount. The exception is records listed in §§ 39-122 through 39-127, related to records used in claims against the United States. If you are requesting records for that purpose, the custodian can't charge you.

      What Are Your Remedies in Arizona

      If you've been denied access to open records you may sue the official who denied you, and you also may appeal to the superior court. If you win, the court may give you an amount to pay your attorney any fees you incurred in the suit, along with other legal costs (such as filing with the court, etc.) However, make sure you sue within one year of being denied access, pursuant to Arizona code § 12-821. 

       

      Jurisdiction: 

      Subject Area: 

      Access to Public Records in California

      Note: This page covers information specific to California. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of California's public records using the state's California Public Records Act (CPRA). See the text of the CPRA in sections 6250 and 6253 of the California Government Code (Cal. Gov't Code), which states that any individual, corporation, partnership, limited liability company, firm or association, both in and out of California, can inspect California public records.

      You are not required to explain why you are making a request. However, if you request the disclosure of the address of any individual who has been arrested, or the current address of the victim of a crime, you must state whether the request is made for a journalistic, scholarly, political or governmental purpose, and declare that the information will not be used to sell a product or service. Cal. Gov't Code § 6254(f)(3).

      What Records Are Covered in California

      What Government Bodies Are Covered

      You can inspect the public records of California state offices, officers, departments, divisions, bureaus, boards and commissions, and other state bodies and agencies. You can also inspect the public records of local agencies, including counties, cities, schools districts, municipal corporations, districts, political subdivisions, local public agencies, and nonprofit entities that are legislative bodies of a local agency. However, you will not be able to access the records from the California state legislature or its committees, nor to the state courts under the CPRA. See Access to Government Meetings and Access to Court Records for more information.

      What Types of Records Can Be Requested

      You can inspect all "public records" of the government bodies subject to the CPRA. The term "public records" is broadly defined to include information relating to the conduct of the public's business that is prepared, owned, used, or retained by any state or local agency regardless of what medium it is stored in. See Cal. Gov't Code § 6252(e).

      Note that public records do not extend to personal information of public officers which are unrelated to the conduct of public business (for example, a phone message taken by a public officer from a colleague's wife about picking up the children), or computer software developed by the government.

      Exemptions

      An agency may refuse to provide a record if, in a particular case, "the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record." [Cal. Gov't Code § 6255]. For more information, visit California First Amendment Coalition's FAQs on the general public interest exemption.

      In addition to this general exemption, an agency is entitled (but not required) to refuse disclosure if one or more of the following narrowly construed statutory exemptions applies. The Act sets out a long list of specific exemptions (Cal. Gov't Code § 6254), including:

      • Preliminary drafts, notes or memoranda. Pre-decisional, deliberative communications which are not retained by the public agency in the ordinary course of business need not be disclosed if the public interest in withholding those records clearly outweighs the public interest in disclosure (see California First Amendment Coalition's FAQs on this exemption).
      • Pending litigation. This exemption applies to documents pertaining to pending litigation to which the public agency is a party, including attorney work product and documents produced by the agency in anticipation of litigation, but not including deposition transcripts (see California First Amendment Coalition's FAQs on this exemption).
      • Private personal information. Files pertaining to the personnel, medical, wage, financial, job applications or similar matters are exempted from disclosure if disclosure would constitute an unwarranted invasion of personal privacy (see California First Amendment Coalition's FAQs on this exemption).
      • Securities and banking regulators. Applications and other confidential information received by, and reports and draft commmunications produced by/for, these state agencies are exempt from disclosure.
      • Geological and geophysical data. This exemption applies to plant production data and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence.
      • Law enforcement. Records of complaints, investigations, intelligence records, security procedures and other documents of law enforcement agencies are exempted from disclosure (see California First Amendment Coalition's FAQs on this exemption).
      • Examination data. Test questions, scoring keys and other examination data used to administer a licensing and other examinations are exempt from disclosure.
      • Real estate appraisals and engineering estimates. Where real estate appraisals or engineering or feasibility estimates and evaluations are made relative to the acquisition of property, or to prospective public supply and construction contracts, disclosure can be refused until all of the property has been acquired or the contract executed.
      • Taxpayer information. Information submitted by a taxpayer in confidence, and financial data submitted in applications for financing under the Health and Safety Code, is exempt if the disclosure of information to other persons would result in unfair competitive disadvantage to the person supplying the information.
      • Library circulation records. Records kept for the purpose of identifying the borrower of items available in libraries are exempt from disclosure.
      • Privileged or confidential information. Records are exempt under CPRA if disclosure is exempted or prohibited pursuant to federal or state law (see California First Amendment Coalition's FAQs on this exemption).
      • Employee relations. State agencies are exempted from disclosing records concerning employee relations strategy.
      • Homeland security. An internal agency document assessing agency vulnerability to terrorist attack is exempt.

      How to Request Records in California

      Making the request

      You do not need to make a written request to receive the public documents you want to inspect. If you have a routine request, start by making an informal request for the records over the telephone before invoking the law. If the agency information officer you speak with cannot grant your request over the telephone, he should be able to provide you with the necessary steps for making a formal request.

      Although you are not required to do so, setting your request out in a letter may help you to get the public records you want. The letter should be addressed to the public records officer of the agency, and should include the following information, as appropriate:

      • Your name, address, email address and telephone number (you have the right to make an anonymous request, but providing these details might make it easier to communicate about your request with the information officer)
      • A clear description of the record(s) that you are seeking, or, if you are uncertain of how to describe the records you wish to obtain, a description of your purpose in seeking records and a request that the agency assist you to identify relevant records;
      • Date limits for any search
      • If you anticipate that the record may be hard to find, any search clues you can think of
      • A statement that if portions of the records are exempted, the non-exempt portions of relevant records still be provided
      • Limitations on pre-authorized costs or a request for a cost waiver, together with your reasons for requesting a waiver.

      You can request either to view the records or to have copies made. Viewing records at the agency's office will probably be quicker, and might give you the opportunity to narrow down the list of documents you want copies of, and also reduces your copying expenses.

      Fulfilling the Request

      Agencies are required to provide prompt access to records. Once you make your request to inspect records, you should get immediate access to those records during the hours set by the agency for inspection of records. If you request copies, the agency must decide within ten days whether copies will be provided, except in unusual circumstances, where it may grant itself an extension of fourteen days. "Unusual circumstances" means an agency needs to:

      • Search for and collect the requested records from outside the office processing the request (eg. field facilities or regional offices);
      • Search for and process a voluminous amount of records in a single request;
      • Consult with another agency (or another part of the same agency) having substantial interest in the determination of the request; or
      • Compile data, to write programming language or a computer program, or to construct a computer report to extract data.

      Payment

      A government agency can only charge you the "direct cost" of duplicating records unless it is authorized by statute to charge a reasonable flat fee. In the case of documents, "direct cost" means the cost of photocopying (approximately 10 to 25 cents per page). In the case electronic data, "direct cost" can mean the cost of producing a copy of the record in electronic format (the cost of the disk, as well as the cost of constructing the record, programming and computer services if this is required).

      A statutory fee may be higher than the direct cost of duplicating a record, but cannot exceed what is reasonably necessary to provide the copy. In either case, staff time spent searching for and reviewing records cannot be recovered. Although there is no fee waiver in the CPRA, agencies have the discretion to waive or reduce fees.

      What Are Your Remedies in California

      You have several options open to you should your request be denied. First, try to work with the information officer you are dealing with. If the agency is relying on an exemption, ask the information officer if he will waive the exemption because exemptions are permissive, not mandatory. If that fails, you can also ask the information officer to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If you feel frustrated by your conversations with the information officer, you ask to speak to someone more senior within the agency and explain your case.

      Look to see whether the agency has any process in place to appeal the denial. Some agencies have created a formal process for administrative appeal and some municipal agencies have adopted sunshine ordinances providing for administrative review of denials. If this option is available, pursue it before starting any court action.

      If administrative appeals are not available, or if your request is denied after administrative review, you are entitled to seek court review of the denial (Cal. Gov't Code §§ 5258-5260). Refer to California First Amendment Project's Q&A on using legal action to enforce disclosure. Additionally, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the agency.

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      Access to Public Records in Florida

      Note: This page covers information specific to Florida. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of Florida’s public records using the state's Public Records Act. See chapter 119, section 1 of the Florida Statutes (Fla. Stat.), which states that “all state, county, and municipal records are open for personal inspection and copying by any person.”

      What Records Are Covered in Florida

      What Government Bodies Are Covered

      You are entitled to view the records of all state, county, or municipal units of government, as well as any other public or private entity acting on behalf of one of these agencies. See Fla. Stat. § 119.01. See Access to Government Meetings in Florida and Access to Florida Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You are entitled to inspect and copy "public records," including all documents, maps, tapes, photographs, films, sound recordings, data processing software, or other material, made or received pursuant to law or in connection with the official business of any agency. Fla. Stat. § 119.011(11).

      What Exemptions Might Apply

      Unlike other states, where in most cases there are a limited number of exemptions, Florida has hundreds of general and agency-specific exemptions pursuant to which an agency can refuse to provide access to records. The Florida Public Records Act lists the following:

      A summary of these can be found on the Florida First Amendment Foundation's website, and the Reporters Committee for the Freedom of the Press provides a discussion of the exemptions as well. The Office of the Attorney General's Sunshine Manual also contains helpful summaries of what exemptions apply to law enforcement records, birth and death records, hospital and medical records, education records, and abuse records.

      How to Request Records in Florida

      You can make a request over the telephone or in writing. While a telephone request may be a quicker way of submitting a routine request, a written request may be preferable if your request is detailed or complicated, or if you anticipate that the agency might deny your request. Having a written record of your request will aid an appeal, should you later decide to make one.

      Your request should be addressed to the ‘’’custodian of public records’’’ (the government officer who controls or has access to public records) at the agency which has custody of the records you want to obtain. If you are unsure of which agency to contact, the alphabetical list of records and the agencies that keep them in the Florida Public Records Guide might be useful. The records you're looking for might even be available through a free online search (see Florida Public Records Directory).

      There is no prescribed form for the letter, but your letter should contain the following elements, as appropriate:

      • A statement that you are requesting records under the Florida Public Records Act
      • A clear description of the records that you are seeking
      • Your name and contact details
      • A demand that if your request is denied, the agency set out the exact statutory citation authorizing the denial as required by Fla. Stat. § 119.07(1)(d) (unless the agency is in the legislative or judicial branch, in which case do not cite the section).

      Alternatively, you might find the Florida First Amendment Foundation's sample request letter a useful guide for writing your own letter.

      The Florida Public Records Act does not compel agencies to respond to requests within a specific time limit, but the courts have held that an agency is required to respond within a "reasonable" time to locate the records and redact exempt portions. Fla. Stat. § 119.07(1)(a), (c).

      An agency can charge you either a set fee prescribed by law, or if no fee is prescribed, no more than 15 cents per page or 20 cents per double-sided page. If you request a certified copy of a public record, then the agency is likely to charge up to $1 per page. If you make a request of a nature and volume that requires the agency to make extensive use of information technology and/or staff time, the agency is entitled to charge a reasonable service charge which reflects the actual cost incurred. Fla. Stat. § 119.07(4).

      Note that the law only applies to existing documents. The law does not require a custodian of public records to create a record in response to your request (but she may do so at her discretion).

      What Are Your Remedies in Florida

      If an agency denies your request, or takes an unreasonably long time to respond, make sure that you have the denial in writing. If the agency has not cited the specific statutory provision under which it claims that the document is exempt, insist that it does so.

      You have three options for seeking to have a denial reviewed:

      • seek mediation through the Office of the Attorney General Open Government Mediation Program;
      • file a complaint with your local state attorney (state attorneys are empowered to prosecute suits charging public officials with violations of the Public Records Act); or
      • file a writ of mandamus in court to challenge the agency’s denial of your request and enforce compliance.

      Additionally, the Florida First Amendment Foundation invites members of the public to contact it when facing this decision.

      If you wish to file a lawsuit to enforce compliance with your request, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the agency. If you are successful in court, the court will issue an injunction requiring the agency to disclose the records. Additionally, if the court finds that the agency's refusal was unlawful, it is empowered to require the agency to pay your attorney's fees. See Fla. Stat. § 119.12.

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      Access to Public Records in Georgia

      Note: This page covers information specific to Georgia. For general information concerning access to government records see the Access to Government Records section of this guide.

      If you are a resident of Georgia, you have a statutory right to inspect a vast number of Georgia's public records using the state's Open Records Act (OPA). See Title 50, Chapter 18, Article 4, section 70(b) of the Georgia Annotated Code (Ga. Code Ann.). The Georgia Attorney General has issued an opinion that non-residents should also be given access, so it is worth making a request even if you are a not a citizen. See 1993 Op. Att'y Gen. No. 93-27.

      What Records Are Covered in Georgia

      What Government Bodies Are Covered

      You can inspect the public records of all state departments, agencies, boards, bureaus, commissions and authorities, as well as county and municipal government entities and regional authorities. The OPA also covers private entities performing a service for a public agency, as well as nonprofit organizations that receive more than one-third of their funding from tax funds. Ga. Code Ann. § 50-18-70, Ga. Code Ann. § 50-14-1. See Access to Government Meetings in Georgia and Georgia State Court Records for more information on how to access records from those entities.

      What Types of Records Can Be Requested

      You have the right to inspect all public records of the government bodies subject to the OPA. The term "public records" is broadly defined to include all all written documents, maps, books, tapes, photographs, and electronic information, prepared and maintained or received in the course of the operation of a government body. Ga. Code Ann. § 50-18-70(a).

      Exemptions

      A government body may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • Confidential documents--Documents specifically required by the federal government to be kept confidential are exempt;
      • Personal privacy--Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy, are exempt;
      • Law enforcement investigations--This exemption applies to records of law enforcement agencies dealing with confidential sources and other confidential information;
      • Law enforcement investigations--Records of pending law enforcement or regulatory investigations;
      • Motor vehicle accident reports--Individual Georgia Uniform Motor Vehicle Accident Reports are exempt, except upon the submission of a written statement of need by an interested party (eg. the owner of the car involved in an accident);
      • Hiring and firing--Records relating to the hiring or firing of an agency employee or officer, or investigation of pending complaints against public officers or employees are exempt;
      • Acquisition of real property--real estate appraisals, engineering or feasibility estimates, or other records made for or by an agency in relation to the future acquisition of real property;
      • Top candidates--Records related to the top three candidates for the head or an agency or of a school in the university system are exempt;
      • Staff services--Records related to the provision of staff services to the legislature or legislative research offices;
      • Donated records--Records that are of historical research value which are given or sold to public archival institutions, public libraries, or libraries of a unit of the Board of Regents of the University System of Georgia are exempt if the owner or donor of such records wishes to place restrictions on access to the records;
      • Historic properties--Records that contain information from the Department of Natural Resources relating to the location and character of historic properties are exempt;
      • Rare species and sensitive habitats--Records that contain site specific information regarding the occurrence of rare species of plants or animals or the location of sensitive natural habitats on public or private property if the Department of Natural Resources determines that disclosure will create a substantial risk of harm, theft, or destruction to the species or habitats or the area or place where the species or habitats are located;
      • Social security number etc--An individual's social security number, insurance or medical information in personnel records, shall be redacted from such records;
      • Alarm systems--The names, home addresses, telephone numbers, security codes, etc held in connection with burglar alarm systems, fire alarm systems, or other electronic security systems;
      • Electronic signature--Public records containing information that would disclose any component relating to an electronic signature which would jepordize that person's sole control over his or her electronic signature is exempt; or
      • Personal details of government employees--This exemption applies to records that would reveal the home address or telephone number, social security number, or insurance or medical information of law enforcement officers, judges, scientists employed by the Division of Forensic Sciences of the Georgia Bureau of Investigation, correctional employees, and prosecutors, or their familes.

      Trade secrets, certain research projects, some testing materials, firearms licensing information, or information covered under the attorney-client privilege or material that is attorney work product are also exempt. See Ga. Code Ann. § 50-18-72.

      Consult the Reporters Committee for Freedom of the Press's Open Government Guide: Georgia for more information on these exemptions.

      How to Request Records in Georgia

      If your request is straightforward, you may find it quickest and easiest to make an informal request over the telephone. If the public records officer is unable to fulfill your request over your phone, or if your request is complicated or potentially controversial, you should put your request in a letter.

      There is no prescribed form or content for a public records request letter, but your letter should be addressed the public records officer of the agency and should contain the following information, as appropriate:

      • A statement that this is a public records request, citing Section 50-18-70 of the Georgia Code;
      • A clear description of the records you seek
      • A request that fees be waived on the basis that your request is in the public interest, and/or a statement of how much you are prepared to pay in fees
      • A demand that if the agency refuses your request, it cite the specific statutory exemption it relies upon, and provides any non-exempt portions of otherwise exempt documents

      Alternatively, use Student Press Law Center's State Open Records Law Request Letter Generator to produce a request letter that complies with Georgia law. Additionally, the Georgia Press Association's Abbreviated Guide to Georgia's Open Meetings and Open Records Laws provides commentary on how to request records and also sets out a sample letter to use as a guide.

      An agency must grant or deny your request within three working days. If the agency requires time to arrange the records for inspection, they must respond within that period with a description of the documents and a timetable for inspection and copying. Ga. Code Ann. § 50-18-70(f).

      If your request is routine, like requesting to view a zoning map, you should not be charged a search. However, if your request involves unusual cost or burden to the agency, it is entitled to charge a reasonable fee for the search, retrieval and other direct administrative costs incurred complying with your request. Agencies can charge up to 25 cents per page for duplication (unless a higher charge is specifically authorized by other legislation), or the cost of any disks or other electronic media used to transfer the information to you. Ga. Code Ann. § 50-18-71.

      What Are Your Remedies in Georgia

      If your request is denied, make sure the agency has put the denial in writing, setting out the legal basis upon which they claim the denial is justified. From here, you have several options:

      • ask the Office of the Attorney General to prosecute that person for a misdemeanor under the Act if you believe that a person has knowingly and willfully violated the OPA by refusing to provide access to non-exempt records; or
      • file a lawsuit in a local superior court to enforce compliance.

      If you wish to file a lawsuit to enforce compliance with your request, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the agency.

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      Access to Public Records in Illinois

      Note: This page covers information specific to Illinois. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of the Illinois' public records using the state's Freedom of Information Act (IL FOIA). See chapter 5, act 140 of the Illinois Compiled Statutes (Ill. Comp. Stat.). Additionally, you are not required to disclose your reasons for requesting the information.

      What Records Are Covered in Illinois

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of "public bodies", including legislative, executive, administrative, or advisory bodies of the State, State universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State. See 5 Ill. Comp. Stat. 140/2. Note that Access to Government Meetings in Illinois and Illinois State Court Records has more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of the government bodies subject to the IL FOIA. The term "public records" is broadly defined to include all documents, books, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information prepared, used, received, possessed or under the control of any public body, regardless of whether medium or format. See 5 Ill. Comp. Stat. 140/2(c).

      Exemptions

      A public body may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • records exempted under another statute
      • information that would constitute a clearly unwarranted invasion of an individual's privacy
      • records compiled by any public body for administrative enforcement proceedings
      • certain types of criminal history record information from criminal justice agencies
      • records that relate to or affect the security of correctional institutions and detention facilities.
      • advisory internal communications that are meant to assist with a final agency determination of policy
      • trade secrets or commercial or financial information
      • records containing proposals and bids to enter into any contract until the time the proposals and bids are to be opened publicly
      • valuable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss
      • test questions and answers, and scoring keys used to develop, administer or score an academic examination or determined the qualifications of an applicant for a license or employment
      • building and infrastructure plans whose disclosure would compromise security
      • library records identifying library users with specific materials
      • minutes of meetings of public bodies closed to the public as provided in the Open Meetings Act until the public body makes the minutes available to the public
      • communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation
      • information received by a primary or secondary school, college or university under its procedures for the evaluation of faculty members by their academic peers.
      • administrative or technical information associated with a public body's computer processing operations that would compromise security of the system
      • any documents or materials relating to collective negotiating matters between public bodies and their employees or representatives, that are not the final contract or agreement
      • drafts, notes, recommendations and memoranda pertaining to the financing and marketing transactions of the public body
      • records, documents and information relating to real estate purchase negotiations until those negotiations have been completed or otherwise terminated
      • proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool.
      • information concerning a university's adjudication of student or employee grievance or disciplinary cases that would reveal the identity of the student or employee, except for the final outcome of the cases
      • course materials or research materials used by faculty members
      • information related solely to the internal personnel rules and practices of a public body.
      • information used by a public body responsible for the regulation or supervision of financial institutions or insurance companies, unless disclosure is otherwise required by state law
      • information the disclosure of which is restricted under Section 5-108 of the Public Utilities Act.
      • manuals or instruction to staff that relate to establishment or collection of liability for any State tax or that relate to investigations by a public body to determine violation of any criminal law
      • applications, related documents, and medical records received by the Experimental Organ Transplantation Procedures Board
      • insurance or self insurance claims, loss or risk management information, records, data, advice or communications
      • information and records held by the Department of Public Health and its authorized representatives relating to known or suspected cases of sexually transmissible disease
      • information exempted under Section 30 of the Radon Industry Licensing Act
      • performance evaluations under Section 55 of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act
      • security portions of system safety program plans, investigation reports, surveys, schedules, lists, data, or information compiled, collected, or prepared by or for the Regional Transportation Authority under the Bi-State Transit Safety Act
      • information exempted under Section 50 of the Illinois Prepaid Tuition Act
      • information exempted under the State Officials and Employees Ethics Act
      • information that would disclose secret or confidential information intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act
      • information contained in a local emergency energy plan
      • information concerning the distribution of surcharge moneys collected and remitted by wireless carriers under the Wireless Emergency Telephone Safety Act
      • vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public
      • maps and other records regarding the location or security of generation, transmission, distribution, storage, gathering, treatment, or switching facilities owned by a utility or by the Illinois Power Agency
      • law enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation
      • information provided to a residential health care facility resident sexual assault and death review team or the Executive Council under the Abuse Prevention Review Team Act
      • information provided to the predatory lending database created pursuant to the Residential Real Property Disclosure Act
      • defense budgets and petitions for certification of compensation and expenses for court appointed trial counsel as provided under the Capital Crimes Litigation Act
      • information contained in or related to proposals, bids, or negotiations related to electric power procurement under the Illinois Power Agency Act and the Public Utilities Act

      See 5 Ill. Comp. Stat. 140/7.

      A public body must provide any segregable non-exempt portions of otherwise exempt records. Consult the Reporters Committee for Freedom of the Press' Open Government Guide: Illinois, to better understand the exemptions for the IL FOIA.

      How to Request Records in Illinois

      Under the IL FOIA, you are entitled to make a request in person or in writing, but the Illinois Attorney General recommends making requests in writing, because time limits and appeal processes are only activated upon the submission of a written request.

      The Act does not stipulate what a written request must require, but the letter should be addressed to the freedom of information officer of the relevant agency and contain, as appropriate:

      • A statement that you are requesting records under the Illinois Freedom of Information Act
      • A clear description of the records that you are seeking
      • Your name and contact details
      • A demand that if your request is denied, the agency set out the exact statutory citation authorizing the denial

      You may also find the Illinois Attorney General's sample FOIA request letter helpful in shaping your letter.

      What Are Your Remedies in Illinois

      If your request is denied, make sure the agency has put the denial in writing, setting out the legal basis upon which they claim the denial is justified. From here, you have several options:

      If you wish to file a lawsuit to enforce compliance with your request, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the agency.

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      Access to Public Records in Indiana

      Note: This page covers information specific to Indiana. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of Indiana’s public records using the state's Access to Public Records Act (APRA). See title 4, article 14, section 3 of the Indiana Code, (Ind. Code). You do not have to tell the records-keeper why you are seeking the information, as you cannot be denied a request because of your reasons for wanting the information.

      What Records Are Covered in Indiana

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of "public agencies" under the APRA. The term "public agency" is defined broadly and includes townships, cities, schools, law enforcement agencies, and any boards, commissions, agencies, or offices that exercises administrative, judicial, or legislative power. The act also includes any entity that uses public funds or is subject to audit review by the state board of accounts. Because the list is so expansive, chances are good that most state entities fall within the act. For a full list of all entities that are covered, see Ind. Code § 5-14-3-2(l). Note that Access to Government Meetings in Indiana and Indiana State Court Records have more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of Indiana’s public agencies. The term "public record" refers to any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency. See Ind. Code § 5-14-3-2(m). Because the definition of "public record" is so broad, you should have access to nearly any document or recording that a public agency has in its possession, unless the records fall under an exemption.

      Exemptions

      A public agency will refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • Records declared confidential by state statute
      • Records declared confidential by rule adopted by a public agency that has authority to declare public records confidential
      • Records that federal law requires be kept confidential
      • Trade secrets
      • Confidential financial information obtained by a person upon request.
      • Information concerning research conducted under the auspices of a state educational institution
      • Grade transcripts and license exam scores
      • Records declared confidential by the Indiana Supreme Court
      • Patient medical records and charts, unless the patient has provided written consent to disclosure
      • Application information declared confidential
      • Photographs or video/audio recordings of autopsies
      • Social Security numbers contained within records

      A public agency has the discretion to refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • Investigatory records of law enforcement agencies
      • The work product of an attorney employed or appointed by a public agency
      • Test questions, scoring keys, or other exam data used in licensing exams before the test is given or if it is to be given again at a later time
      • Test scores identifying the person's name, unless he or she has consented
      • Certain records related to negotiations if negotiations are in progress
      • Advisory or deliberative materials that express opinions and are used for decision-making
      • Diaries, journals, or personal notes
      • Certain information pertaining to public employees' files or applications
      • Minutes or records of hospital staff meetings
      • Information that would jeopardize a record-keeping or security sytem
      • Computer programs, codes, filing systems, or software that are owned by a public agency
      • Records specifically prepared for discussion during an executive session
      • The work product of the legislative services agency under personnel rules
      • The work product of members and staffs of the general assembly
      • The identity of the donor of a gift made to a public agency if the donor requests nondisclosure
      • Library records which could be used to identify a library patron
      • The identity of any person who contacts the bureau of motor vehicles concerning the ability of a driver to operate a motor vehicle safely
      • The medical records and evaluations regarding the ability of a driver to operate a motor vehicle safely.
      • School safety and security plans and systems, including emergency preparedness plans
      • A record which, if disclosed, would threaten public safety by exposing a vulnerability to a terrorist attack
      • Personal information concerning a customer of a municipally owned utilty
      • Certain personal information about a complainant contained in law enforcement records

      For more information about the exemptions as they appear in the statute, refer to Ind. Code §§ 5-14-3-4(a)(1)-(11) and Ind. Code §§ 5-14-3-4(b)(1)-(20). Additionally, consult the Reporters Committee for Freedom of the Press’ Open Government Guide: Indiana to better understand the exemptions under the Indiana APRA.

      How to Request Records in Indiana

      You can generally request the record via telephone, mail, or in person at the public agency's office. Be sure to describe the record as specifically as possible so the record-keeper can identify the particular record that you are seeking. Some agencies may require that all requests be written, and some public agencies have specific request forms that you may have to fill out. If you don't know which public agency to contact, the Office of the Public Access Counselor suggests that you contact your local library or the State Information Center for help.

      The public agency must respond to your request within 24 hours if you made the request in person or via telephone. If you mailed or faxed your request, the agency must respond within seven calendar days. The agency's response may simply acknowledge your request or may inform you how and when it intends to produce the records. However, the APRA does not specify a timeframe in which the agency must produce the records once it has received your request. Public agencies must only produce the records in a reasonable period of time.

      Once the public agency produces the records, you may either inspect them or have them copied. Agencies cannot charge you if you only want to inspect the records, but they may charge copying fees. State agencies may charge up to $.10 per page, and all other agencies may only charge the actual costs of copying. Agencies cannot charge fees for labor, overhead costs, searching, or review. Note that the law only applies to existing documents. The law does not require a records-keeper to create a record in response to your request.

      What Are Your Remedies

      If your request is denied, the agency must give you its legal basis for the denial. If you disagree with this response, you should contact the Office of the Public Access Counselor. You can contact the Office informally, or you can file a formal complaint. The Public Access Counselor will provide written advisory opinions in response to formal complaints.

      If your request is still denied, you may ultimately file a civil lawsuit in the circuit or superior court of the county in which the denial was made. In such a lawsuit, the agency has the burden of proof, meaning that the agency must prove that it properly denied access to the record. Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency.

       

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      Access to Public Records in Massachusetts

      Note: This page covers information specific to Massachusetts. For general information concerning access to government records see the Access to Government Records section of this guide.

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      You have a statutory right to inspect a vast number of the Commonwealth's public records using the state's Public Records law. See Chapter 66, section 10(a) of the Massachusetts General Laws, ("Mass. Gen. Laws") which states that "anyone" can make a request for state public records in Massachusetts.

      You are not required to explain to a records custodian (the government officer who controls or has access to public records) why you are making a request. 950 CMR 32.05(5). However, if you request records involving building and infrastructure plans, vulnerability assessments, security measures, or other such requests that may raise terrorism-related concerns, a records custodian may ask you to provide the purpose for your request. Although you are not required to answer, you may wish do to so as the records custodian is charged with using all the information available to reach a reasonable judgment on whether the disclosure will jeopardize public safety, and thus whether to grant your request. Mass. Gen. Laws, ch. 4, § 7(26)(n).

      What Records Are Covered in Massachusetts

      What Government Bodies Are Covered

      You can inspect the public records of any Commonwealth agency, executive office, department, board, commission, bureau, division or authority, or of any of their political subdivisions. You can also inspect the public records of any authority established by the general court to serve a public purpose. However, the Public Records Law does not apply to the Massachusetts state legislature or its committees, nor to the state courts. See Access to Government Meetings in Massachusetts and Massachusetts State Court Records for more information.


      What Types of Records Can Be Requested

      You can inspect all "public records" of the government bodies subject to the Public Records Law. The term "public records" is broadly defined to include all documents, including those in electronic form, generated or received by any government body. See Mass. Gen. Laws ch. 4, § 7(26).


      Exemptions

      A records custodian may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • the records are exempt under another statute
      • records related solely to internal personnel rules and practices of the government entity
      • records that contain personnel and medical information
      • inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency
      • a government employee's personal materials, such as her notebooks
      • investigatory materials created by law enforcement
      • trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality
      • records containing proposals and bids to enter into any contract until the time the proposals and bids are to be opened publicly
      • intra-agency records concerning the evaluation process for reviewing bids or proposals, prior to entering into negotiations with or to awarding a contract to a particular person
      • appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired
      • the names and addresses of any persons contained in (1) applications for licenses to carry or possess firearms, or (2) sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition
      • the questions and answers, and scoring keys used to develop, administer or score a test or examination, as long as the information is to be used for another test or examination
      • contracts for hospital or medical services between a government-operated healthcare facility and a health maintenance organization or a health insurance corporation
      • building and infrastructure plans and emergency procedures whose disclosure might create a public safety risk
      • the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth (Note that this exemption extends to their family members as well.)
      • information collected in the adoption contact information registry

      Consult the Reporters Committee for Freedom of the Press's Open Government Guide: Massachusetts, and the Massachusetts Secretary of the Commonwealth's A Guide to Massachusetts Public Records Law for more information on these exemptions.

      How to Request Records in Massachusetts

      You may make either an oral or a written request to the records custodian for the government body whose public records you wish to inspect. (If you do not know who the records custodian is, call the government body and ask for the records custodian's contact information.)

      The records custodian has ten days to refuse or comply with your request. Mass. Gen. Law, ch. 66, § 10(b). If you want a copy of the documents, you may need to pay a fee. The fee must be reasonable and may cover the time the records custodian spends searching, redacting, copying, and refiling a record. In some cases, a records custodian has the discretion to waive fees if disclosure is in the public interest. Note that the law only applies to existing documents. The law does not require a records custodian to create a record in response to your request (but he may do so at his discretion).

      What Are Your Remedies

      You have several options open to you should the records custodian deny your request. First, try to work with the records custodian. If the agency is relying on an exemption, ask the records custodian to release the nonexempt portions of the record with the exempt portions removed or redacted.

      You may also petition the supervisor of public records. You will need to send a letter to the supervisor within 90 days of your original request (NOT from the date your request was denied) stating the reasons for your appeal. The letter must be accompanied by your original request and the written response, if any, you received from the custodian of the record. If the supervisor finds that the records are public, the supervisor can force the records custodian to comply. If, on the other hand, the supervisor of records issues a denial, you are entitled to seek court review of the denial. You can file a lawsuit with the Massachusetts supreme judicial and superior courts to enforce compliance with your request. Mass. Gen. Laws ch. 66, § 10(b). Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the government entity.

      For more information

      You may want to familiarize yourself with the Public Records law and browse through chapter 66 and chapter 4, section 7, clause 26 of the Massachusetts General Laws for more information. Additionally, to better understand the intricacies of the law, refer to the Massachusetts Secretary of the Commonwealth's terrific resource called A Guide to Massachusetts Public Records Law.  If you are requesting information from police agencies, you may wish review this bulletin from the supervisor of public records, which addresses some of the more common reasons why Massachusetts police officials deny public records requests.

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      Access to Public Records in Michigan

      Note: This page covers information specific to Michigan. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect Michigan's public records using the state's Freedom of Information Act ("FOIA"), unless you are "incarcerated in state or local correctional facilities." See Section 15.231 of Michigan Compiled Laws ("Mich. Comp. Laws").

      What Records Are Covered in Michigan

      What Government Bodies Are Covered

      You can inspect the public records of any Michigan agency, department, division, bureau, board, commission, or council in the executive and legislative branches of the state government. You can also inspect the records of bodies created by or funded primarily by state or local authorities. However, the Freedom of Information Act does not apply to the Michigan state legislature or its committees, nor to the state courts. Mich. Comp. Laws § 15.232. Refer to Access to Government Meetings in Michigan and Michigan State Court Records for more information on how to access records from the state legislature and the state courts.

      What Types of Records Can Be Requested

      You can inspect all "public records" of the government bodies subject to the Michigan FOIA. The term "public record" refers to any "writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created," including computerized data, but not including software. Mich. Comp. Laws § 15.232.

      Exemptions

      A FOIA coordinator (the government officer who controls or has access to public records for a public body) may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • information that would constitute a clearly unwarranted invasion of an individual's privacy
      • certain investigatory materials compiled for law enforcement purposes
      • records pertaining to the physical security of custodial or penal institutions, unless public interest in disclosure outweighs the public interest in nondisclosure
      • records exempted under another statute
      • records that are transmitted from one public body to another, as long as the records fall into any of the exemptions listed under the Michigan FOI statute
      • trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality
      • information subject to attorney-client privilege, physician-patient privilege, psychologist-patient privilege, the minister, priest, or Christian Science practitioner privilege, or other privilege recognized by Michigan law
      • records containing proposals and bids to enter into any contract until the time the proposals and bids are to be opened publicly
      • appraisals of real property acquired by a public body
      • test questions and answers, and scoring keys used to develop, administer or score a test or examination, as long as the information is to be used for another test or examination by the public body
      • medical, counseling, or psychological facts which would reveal a person's identity
      • advisory internal communications that are meant to assist with a final agency determination of policy or action, unless public interest in disclosure outweighs the public interest in nondisclosure
      • law enforcement plans for addressing situations involving public safety, unless public interest in disclosure outweighs the public interest in nondisclosure
      • information that would reveal the exact location of archaeological sites
      • academic transcripts of students who are delinquent on university loans
      • records of a campaign committee, including those that receive state campaign monies
      • personal information about law enforcement officers and their families
      • information identifying an informant
      • operational instructions and staff manuals for law enforcement officers
      • information about investigations into a health care professional's compliance with the public health code before a complaint is issued
      • records on a public body's security measures
      • records from a public body where the requester is party to a civil lawsuit against the public body
      • all application material that could be used to identify a candidate desiring the position of university president, unless the candidate has already been identified as a finalist
      • building and infrastructure plans and emergency procedures whose disclosure might create a public safety risk, unless public interest in disclosure outweighs the public interest in nondisclosure
      • records that are protected by the federal Family Educational Rights and Privacy Act of 1974

      For more information about the exemptions as they appear in the statute, refer to Mich. Comp. Laws § 15.243. Additionally, you should also consult the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan, and the Office of the Michigan Attorney General's helpful summary to better understand the exemptions for the Michigan FOIA.

      How to Request Records in Michigan

      You must make a written request and fax, email, or mail it to a public body's FOIA coordinator. The Student Press Law Center has a unique letter generator that can help you create your request. Additionally, the Michigan Attorney General's Office has a helpful summary of how to request records (scroll down to the sections titled "Availability of Public Records" and "Fees for Public Records"). Note that you may request a specific record, and also subscribe to public records that are created, issued or disseminated on a regular basis. Mich. Comp. Laws § 15.233.

      The FOIA coordinator has five days to refuse or comply with your request. Mich. Comp. Laws § 15.235. If you want a copy of the records, you may need to pay a fee. The fee is limited to the cost of complying with the request, and may cover the time the FOIA custodian spends searching, redacting, and copying a record. Mich. Comp. Laws § 15.234. Note that the law only applies to existing documents. The law does not require a FOIA custodian to create a record in response to your request.

      What Are Your Remedies in Michigan

      You have several options open to you should the FOIA coordinator deny your request. First, try to work with the FOIA coordinator. If the public body is relying on an exemption, ask the FOIA coordinator to release the nonexempt portions of the record with the exempt portions removed or redacted.

      You may also petition the head of the public body. If she finds that the records are public, the FOIA coordinator will be forced to comply with your request. If, on the other hand, the head of the public body issues a denial, you are entitled to seek court review of the denial. You have 180 days to file a lawsuit with the Michigan state court to enforce compliance with your request. See Mich. Comp. Laws § 15.240. If the court finds that the requested records are public, the court can not only compel the public body to comply with the request, but may also award attorneys' fees and costs, as well as damages, which may include punitive damages. See Mich. Comp. Laws § 15.240(6)-(7). Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the government entity.

      See also the Attorney General's Summary of the Michigan FOIA (scroll down to the "Denial of a Record," "Enforcement," and "Penalties for Violation of the Act" sections).

      For more information

      You may want to familiarize yourself with the Michigan Legislature's The Michigan Open Meetings Act and Freedom of Information Act.

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      Access to Public Records in Missouri

      Note: This page covers information specific to Missouri. For general information concerning access to government records see the Access to Government Records section of this guide.

      Missouri combines its public records and public meetings laws into one statute. It defines public records very broadly and has no limitations on who can request records. You do not have to state a purpose to access records.

      What Records Are Covered in Missouri

      What Government Bodies Are Covered

      Any "public governmental body"  is subject to the public records law. A public governmental body is defined under Mo. Rev. Stat. § 610.010.4(4) as any "legislative, administrative or governmental entity" that includes any agency, council, committee, any governing body of any public institution of higher education, departments or divisions of the state, any quasi-public body (meaning any person or business whose primary purpose is to contract with public bodies or perform a public function, such as tax abatement) and legislative/administrative bodies with the power to make rules or hear and decide cases.

      What Types of Records Can Be Requested?

      Public records, defined in Mo. Rev. Stat. § 610.010.6(6), include any written or electronic report, survey, memorandum or any other document retained by or prepared for a public body. Internal memoranda prepared for a public body with advice, opinions and recommendations are excluded unless they are retained by the body or presented at a public meeting.

      Both arrest reports and incident reports — any record with the date, time and location of an incident and the name of the victim with whatever facts surround the the incident — are open to the public. Investigative reports, which inquire into a crime in response to either an arrest or incident report, are closed until the investigation becomes inactive.

      Exemptions

      Reports of any ongoing investigation are closed. Arrest reports of people who are not charged within 30 days of arrest are also closed, however the disposition portion of the record may be open. 

      Police can redact any portion of a record that would pose a "clear and present danger" to a victim, witness, undercover officer or other person, would jeopardize an investigation, or would disclose the identity of a confidential informant.

      The following records are also exempt under Mo. Rev. Stat. § 610.021:

      • Any confidential or privileged communications between a body and its attorneys related to any legal actions or lawsuits involving a public governmental body, except for settlement agreements, unless a court orders them closed—if so, the amount paid in the settlement shall still be open
      • Records relating to the public body's leasing/purchasing/selling real estate
      • Student records and testing materials
      • Welfare cases
      • Records relating to preparation for negotiations with employee groups
      • Software codes
      • Records that have specifications for competitive bidding
      • Sealed bids and documents
      • Individual personnel records
      • Records related to scientific/technological developments
      • Municipal hotlines
      • Confidential communications with an auditor
      • Credit card numbers, virtual keys, and access codes
      • Social security numbers
      • Operational guidelines for responding or preventing any terrorism or other incidents that could endanger the public
      • Existing or proposed security systems
      • Records pertaining to a case where the charges were nolle pressed (meaning the prosecution declined to prosecute), dismissed, found not guilty or found not guilty due to mental disease or defect
      In January 2011, a bill was introduced to close any personal information in records used for licensing foster homes. The bill will not take effect until voted on and signed into law.

      How to Request Records in Missouri

      Making the request

      The public body must respond "as soon as possible" but no later than 3 days after receiving your request. If you're not granted immediate access, the public body must provide you a written statement explaining the delay. If you are denied access, they must give you a written statement explaining denial.

      Payment

      The public body may not charge you more than ten cents per page  for copies, if the copy is smaller than a 9 X 14 sheet of paper. In addition to this copying fee, under Mo. Rev. Stat. § 610.026 they can charge you the hourly rate of pay of clerical staff for the time they spend duplicating the records. If research time is needed, you may be charged for that.

      If your request involves copies larger than 9 X 14 copies and/or involves tapes, disks, films, maps, graphs or digital records, you may also be charged for accessing these records, even if you don't make copies. The amount can't exceed the hourly rate of the staff. If the staff must copy disks, then you can be be charged the costs of disks.

      The public body can request advance payment.

      What Are Your Remedies in Missouri

      You may file suit if you believe that your request was improperly denied.  If you can prove that a record was supposed to be open and you were denied access, then the public body must show that it was complying with the law or else you win your case.

      If you can also show that the public body violated the open meetings law, the court must award you damages, up to $1,000. In calculating your award, the court must consider the size of the jurisdiction, the seriousness of the offense, and whether the body has previously violated the law. The court may give you costs and attorney fees. The statute doesn't define a "knowing" violation, but in Wright v. City of Salisbury, No. 2:07CV00056 AGF, 2010 WL2947709 (E.D.Mo. 2010), the federal district court in the Eastern District of Missouri, applying state law, held that a "knowing" violation referred to evidence that the public body knew that they were violating the law.

      If you can show that the body purposely violated the law, the court must give you damages, up to $5,000, as well as court costs and attorney fees. In calculating your award, the court must consider the size of the jurisdiction, the seriousness of the offense, and whether the body has previously violated the law. Again, the statute doesn't define "purposely", but  in Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. Ct. App. 1998), the Missouri Court of Appeals held that a purposeful violation is one that shows a conscious plan to violate the law.

      You can also sue to open an otherwise lawfully closed law enforcement record. The court must weigh the public interest in opening the record with the harm to anyone involved in the incident in deciding whether to open it. You may have to bear the costs and attorney fees for both yourself and the law enforcement body if you do this, unless the court finds that the reason for withholding an investigative report was substantially unjustified in your specific circumstances. 

      The courts also have the power to enforce public records and public meetings provisions through injunctions under Mo. Rev. Stat. § 610.030.

      If you sue a public body for a closed record violation, make sure you do within one year pursuant to Mo. Rev. Stat. § 610.027.5(5).

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      Access to Public Records in Nevada

      Note: This page covers information specific to Nevada. For general information concerning access to government records see the Access to Government Records section of this guide.

      Under the Nevada Public Records Law, all public books and records of any government entity that have not been declared confidential must be made available to members of the public upon request. Nev. R. Stat. Ch. 239. The law does not put any limitations on who may make the request to inspect the public records, and any exception or exemption to the public records law must be construed narrowly. Nev. R. Stat. 239.001.

      Included Government Bodies

      A "governmental entity" for the purposes of the Nevada Public Records Law includes an elected or appointed officer of Nevada or of a political subdivision of the state; an institution, board, commission, bureau, council, department, division, authority, or other unit of government of Nevada or a political subdivision of Nevada; a university foundation (a nonprofit corporation, association, or institution or a charitable organization that's purpose is fundraising in support of a university, state college, or community college, which was formed pursuant to the laws of the state and is a 501(c)(3) organization); and educational foundations that are dedicated to the assistance of public schools. The law also includes private entities under contract with the government to provide services to the public that are "substantially similar" to the services provided by the government and are in lieu of services otherwise authorized or required to be provided by the government.

      Public Records Defined

      All books and records, except those exempted by statute, must be made available for inspection during normal business hours. Any privatization contract, which authorizes private entities to provide certain public services, is also public record.

      Records are confidential if the record contains the name, address, telephone number, or other potentially personal identifying information of a person and the person whose information appears in the record provided the information to the public entity for the purpose of 1) registering with the entity for the purpose of using a recreational facility or a portion of the facility or 2) on his own behalf or on behalf of a child, registering, enrolling, or applying to participate in a recreational or instructional activity that is conducted by, sponsored, or conducted by a public entity. Nev. R. Stat. 239.0105. Additionally, any public library records
      that identify a user with the property used are not public records under this statute. Nev. R. Stat. 239.013.

      The statute does not specifically define what is public record. Generally, what qualifies as public record is determined by case law. According to the Legislative findings, the government entities and courts must apply a balancing of interests test, although this is also not specifically defined. The most commonly used test is laid out in Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798
      P.2d 144 (1990). In the Donrey test, the court must balance the public's right to know the information being requested with the individual's right to privacy. However, the test was intended to be applied very narrowly to criminal investigative records, although it is often cited by entities in refusals to comply with records requests. Generally, in order to challenge a refusal in which the entity cites Donrey, the person making the request must appeal to the district court in the county where the record is located.

      Making a Public Records Request

      A request for a copy of a public record does not need to be made in writing, and the public entity must furnish the record no later than the fifth business day after receipt of the request. Nev. R. Stat. 239.0107. If the entity does not have legal custody or control of the record, the entity must give the person requesting the record notice of that fact in writing and must provide the name and address of the governmental entity that does have legal custody or control of the record. If the entity cannot make the public record available by the end of the fifth business day, then it must make that notification in writing and it must provide a date and time when the record will be made available.

      If the public entity denies the request because all or part of the record is confidential, it must provide notice of that fact in writing and cite to the statute or legal authority that makes the information confidential. Nev. R. Stat. 239.0107(d).

      Payment

      A government entity may charge a fee for providing copies of a public record, but that fee must not exceed the actual cost of making a copy of the record, unless a statute or regulation sets a fee for a copy. Nev. R. Stat. 239.052. If a statute specifies that an entity must not charge for a copy, then there is no charge. The fees must be posted in a conspicuous place at each office where the public record may be obtained.

      Copies of transcripts of administrative or court proceedings shall have an additional per-page fee, which must also be posted in a conspicuous place. Nev. R. Stat. 239.053. Additional fees also apply if the information is obtained from a geographic information system, when it requires "an extraordinary use of personnel or resources," or if microfilm is used. Nev. R. Stat. 239.054-055;
      239.070.

      Remedies

      If the request is denied, the applicant may apply to the district court in the county where the record is located requesting an order to allow for the applicant to view the record. Nev. R. Stat. 239.011. The burden of proof the courts used when determining the confidentiality of a document is preponderance of the evidence. If the court grants the records request, the applicant may be able to recover reasonable attorneys fees and costs. Nev. R. Stat. 239.011.

      The Citizen Media Law Project would like to thank the Randazza Legal Group for preparing this section. The contents of this page should not be considered to be legal advice.

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      Access to Public Records in New Jersey

      Note: This page covers information specific to New Jersey. For general information concerning access to government records see the Access to Government Records section of this guide.

      You must be a citizen of New Jersey in order to inspect the state's public records using New Jersey's Open Public Records Act (OPRA). See Section 47:1A-1 of New Jersey Statutes Annotated ("N.J. Stat. Ann."). There is an exception to this for convicts who are trying to access the personal information of a victim or family of a victim of their offense. See N.J. Stat. Ann. § 47:1A-2.2

      What Records Are Covered in New Jersey

      What Government Bodies Are Covered

      You can inspect the public records of any New Jersey agency which includes: any of the principal departments in the executive branch of state government, and any principal department's division, board, bureau, office, commission; the legislature and any office, board, bureau, or commission within or created by the legislative branch; and any independent state authority, commission, instrumentality, or agency. However, the OPRA does not apply to the New Jersey courts. See N.J. Stat. Ann. § 47:1A-1.1. Refer to Access to Government Meetings in New Jersey and New Jersey State Court Records for more information on attending open meetings at the state legislature and accessing records from the state courts.

      What Types of Records Can Be Requested

      You can inspect all "public records" of the government bodies subject to the New Jersey OPRA. The term "public record" refers to all government records that have "been made, maintained or kept on file in the course of . . . official business by any officer, commission, agency, or authority of the state." N.J. Stat. Ann. § 47:1A-1.1.

      Exemptions

      A custodian of records (the government officer who controls or has access to public records for a public body) may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • inter- or intra-agency material that is advisory, consultative, or deliberative in nature
      • communications between a member of the legislature and constituents
      • memoranda and other communications used by a member of the legislature in the course of her duties
      • medical examiner records concerning the body of a deceased person, unless they are used for law enforcement or research purposes, or if there is good cause for disclosure
      • criminal investigatory records
      • crime victim's records
      • trade secrets, commercial or financial information
      • information subject to attorney-client privilege
      • technical or administrative information that may jeopardize computer security
      • building and infrastructure plans and emergency procedures whose disclosure might create a security risk
      • information which, if disclosed, would give an advantage to competitors or bidders
      • information about sexual harassment complaints or grievances
      • information about collective negotiations
      • information between a public body and its insurer
      • information kept confidential under court order
      • honorable discharge certificates (disclosure is permitted to the veteran's spouse)
      • personal information including social security, drivers license, credit card, and unlisted phone numbers
      • college and university records covering: incomplete pharmaceutical research; test questions, answers, and scoring keys; identity of anonymous donors; rare books that have limited public access; admission applications; student records (academic and disciplinary)
      • records exempted under another statute
      • files maintained by the public defender in a case that is considered to be confidential
      • personnel and pension records for a government employee

      For more information about the exemptions as they appear in the statute, refer to the New Jersey Open Public Records Act. Additionally, you should also consult the Reporters Committee for Freedom of the Press's Open Government Guide: New Jersey, and the New Jersey Government Records Council's helpful summary Citizen's Guide to OPRA to better understand the exemptions for the Michigan FOIA.

      How to Request Records in New Jersey

      You must make a written request and convey it to the public body's custodian of records. You can hand-deliver, mail, fax, or in some cases even email your request to the appropriate custodian (check with the public body to see whether they are capable of receiving email requests). Call the public agency and ask for a records request form use to request records under OPRA. Or, use the Student Press Law Center's unique letter generator that can help you create your request.

      The custodian must reply to your request within seven business days. If you want a copy of the records, you may need to pay a fee. In general, the fee is limited to $0.75 per page for the first to tenth page, $0.50 per page for the eleventh page to twentieth page, and $0.25 per page for the twentieth page and on. Note that there may be special service charges in the case of exceptionally difficult requests. See N.J. Stat. Ann. § 47:1A-5 (particularly the sections titled "Time period for responses by custodian," "Fees for copies," and "Special service charges") and the Citizen's Guide to OPRA. Note that the law only applies to existing documents. The law does not require a custodian to create a record in response to your request.

      What Are Your Remedies in New Jersey

      You have several options open to you should the custodian of records deny your request. First, try to work with the custodian. If the public body is relying on an exemption, ask the custodian to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If the custodian still does not apply and you want further review of your request, your three options are to:

      1. Ask the Government Records Council for an informal mediation, which can be done upon written request. See N.J. Stat. Ann. § 47:1A-7 (scroll down to the section titled "Use of mediation").
      2. File a formal action with the Government Records Council. See N.J. Stat. Ann. § 47:1A-6.
      3. File a lawsuit with the New Jersey Superior Court, which requires a $200 filing fee and following court procedure. Id.

      According to the State of New Jersey Government Records Council's Citizen's Guide to OPRA, you may want to contact the Council for advice before filing a lawsuit or formal action. The Council's staff can try to mediate your dispute and bring about a successful resolution. However should the mediation fail, or should you should one of the other two options, you should refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential action against the government entity.

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      Access to Public Records in New York

      Note: This page covers information specific to New York. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect New York's public records using the state's Freedom of Information Law ("FOIL"). See Sections 84 to 90 of the New York Public Officers Law ("N.Y. Pub. Off. Law") which contains no limitations on which members of the public can request records.

      What Records Are Covered in New York

      What Government Bodies Are Covered

      You can inspect the public records of any New York agency. An agency is defined as any "state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity." N.Y. Pub. Off. Law §§ 86(3)-87. If you want to access the records of the state judiciary or the state legislature, refer to Access to Government Meetings in New York and New York State Court Records for more information.

      What Types of Records Can Be Requested

      In general, you can inspect the records of all New York agencies as defined above. The term "record" refers to "any information kept, held, filed, produced or reproduced by, with or for an agency . . . in any physical form." N.Y. Pub. Off. Law § 86(4). Additionally, each agency is required to maintain: (1) records on agency member votes, (2) the name, public office address, title and salary of every officer or employee of the agency, and (3) a subject matter list that list details the subject categories under which records are kept. See N.Y. Pub. Off. Law § 87(3).

      Exemptions

      A records access manager (the government officer who coordinates an agency's response to public requests for records) may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • information that would constitute a clearly unwarranted invasion of an individual's privacy
      • records exempted under another statute
      • if disclosed would interfere with bid or contract awards or union negotiations
      • trade secrets, commercial, or financial information
      • materials compiled for law enforcement purposes which, if disclosed, would: interfere with law enforcement investigations or court proceedings; deprive a person of a right to a fair trial or impartial adjudication; identify a confidential source or disclose confidential information relating to a criminal investigation; or reveal criminal investigative techniques or procedures (except routine techniques and procedures)
      • information that could endanger the life or safety of any person
      • inter- or intra-agency material that is advisory, consultative, or deliberative in nature
      • test questions and answers, and scoring keys used to develop, administer or score a test before the test is given
      • technical or administrative information that may jeopardize the agency's computer security
      • photographs, microphotographs, videotape or other recorded images prepared under N.Y. Veh. & Traf. § 1111-a (repealed Dec. 1, 2009 under L.1988, c. 746, § 17)

      For more information about the exemptions as they appear in the statute, refer to N.Y. Pub. Off. Law § 87(2). Additionally, you should also consult the Reporters Committee for Freedom of the Press's Open Government Guide: New York, and the New York Committee on Open Government's publication Your Right to Know to better understand the exemptions for the New York FOIL.

      How to Request Records in New York

      There is no uniform procedure for you to follow in requesting records from New York agencies because each agency has its own procedures for handling records requests. See N.Y. Pub. Off. Law §§ 87.1(b), 88.1. You are should contact the agency whose records you desire to find out what method they use for making a request. You also have two other resources to help you create your request: (1) the New York Committee on Open Government has placed a sample letter for a records request on its informational site Your Right to know, and (2) the Student Press Law Center has a unique letter generator that can help you generate an appropriate request.

      The records access manager has five days to refuse or comply with your request. See N.Y. Pub. Off. Law § 89.3(a). If you want a copy of the records, you may need to pay a fee. The agency may charge you a fee of $0.25 per page, unless otherwise prescribed by statute. N.Y. Pub. Off. Law § 87(1)(b)(iii). Fees for copies of records in other formats may be charged based upon the actual cost of reproduction. Note that the law only applies to existing documents. The law does not require a FOIA custodian to create a record in response to your request.

      What Are Your Remedies in New York

      You have several options open to you should the records access manager deny your request. First, try to work with the records access manager. If the agency is relying on an exemption, ask the records access manager to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If you are unable to make headway with the records access manager and your records request remains denied, you have thirty days to appeal to the head of the agency. The agency has ten days to comply with your request, or explain their denial in writing. See N.Y. Pub. Off. Law § 89.4(a). If you receive a denial at this point (including if the agency does not respond), you can file a lawsuit with the New York state court to enforce compliance with your request. In some cases the court may award you attorney's fees. See N.Y. Pub. Off. Law § 89.4(b)-(c). Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the government entity.

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      Access to Public Records in North Carolina

      Note: This page covers information specific to North Carolina. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of North Carolina’s public records using the state's Public Records law. See chapter 132, section 1(b) of the North Carolina General Statute, (N.C. Gen. Stat.) stating that public records are the property of the "the people."

      What Records Are Covered in North Carolina

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of "public agencies" under the Public Records law. The term "public agency" is defined broadly and applies to any agency of North Carolina government or its subdivisions. This includes every public office, public officer, institution, board, commission, bureau, council, department, authority, or unit of the state government or a subdivision of government. See N.C. Gen. Stat. § 132-1. Consult Access to Government Meetings in North Carolina and North Carolina State Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of North Carolina’s public agencies. The term "public record" refers to all documents, papers, letters, maps, books, photographs, films, sound recordings, tapes, or electronic data made or received in connection with the transaction of public business by any agency of North Carolina. N.C. Gen. Stat. § 132-1(a).

      Exemptions

      An agency may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      This list is not a complete list of the occasions when an agency may refuse disclosure.  There are numerous narrow exceptions to North Carolina's public records law as well.  Please refer to the Reporters Committee for Freedom of the Press’ Open Government Guide: North Carolina for more information about the exemptions under the Public Records law.

      How to Request Records in North Carolina

      You can generally request records via telephone, fax, mail, or in person. However, agencies may require that the requests be written. Although you may direct your request to any employee within the agency, the custodian of public records is officially in charge of access to public records N.C. Gen. Stat. § 132-2. Therefore, you may want to contact the custodian directly if possible. Try to make your request as specific as possible so the custodian of public records can easily find the document you are seeking.

      You may choose to simply inspect the records during the agency's business hours, or you may request that the agency provide you with copies of the records. If you want the records in a specific format (such as CD-ROM), make sure to specify the format in your request. The law requires that the agency provide the records "in any and all media in which the public agency is capable of providing them." N.C. Gen. Stat. § 132-6.2. Note that the law only applies to existing documents. The law does not require the custodian of public records to create a record in response to your request.

      The law does not specify a specific time period in which the agency must comply with your request. The agency must simply furnish copies "as promptly as possible" N.C. Gen. Stat. § 132-6.

      The agency must provide the records "free or at a minimal cost." Minimal cost means the actual cost of reproducing the records. Agencies may not charge additional fees beyond the actual cost of copying N.C. Gen. Stat. § 132-1.

      What Are Your Remedies in North Carolina

      If your request is denied, you should first ask the custodian of public records to state the specific reason for the denial. If the custodian is relying on an exemption, ask her to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If you feel that the denial is not justified, you may file a civil action in court against the agency to compel disclosure. Actions brought under the Public Records law must be set down for immediate hearing and are given priority in the courts. See N.C. Gen. Stat. § 132-9.  Unlike other states, there are no administrative appeals processes to exhaust before initiating a civil suit in court.  However, in order for the court to have jurisdiction to issue an order compelling the production of public records, the requesting party must initiate mediation of the dispute through the court. See N.C. Gen. Stat. § 132-9(a); see also N.C. Gen. Stat. § 7A‑38.3E(b). The court need not wait until mediation has concluded to order that public records be produced. See N.C. Gen. Stat. § 7A‑38.3E(h). Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency.

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      Access to Public Records in Ohio

      Note: This page covers information specific to Ohio. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of Ohio’s public records using the state's public records law. See chapter 149, section 43 of the Ohio Revised Code, (Ohio Rev. Code).You do not have to reveal your identity or your intended use of the records, as the official is not permitted to deny your request on these grounds. See Ohio Rev. Code § 149.43(B)(4).

      What Records Are Covered in Ohio

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of all "public offices" under Ohio’s public records law. The term "public office" is defined broadly and includes state, county, city, village, township, and school district units. See Ohio Rev. Code § 149.43(A)(1). Consult Access to Government Meetings in Ohio and Ohio State Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You should be able to request any document or file that the public office has prepared or possesses, unless the records fall under an exemption. See Ohio Rev. Code § 149.43(A)(1), which states that you can request any "records" of any public office.

      Exemptions

      A public office may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • Medical records
      • Probation or parole records
      • Adoption files and records related to adoption proceedings
      • Information from records contained in the putative father registry
      • Trial preparation records
      • Confidential law enforcement investigatory records
      • DNA records stored in the DNA database
      • Certain inmate records
      • Department of Youth Services records pertaining to children in its custody
      • Intellectual property records
      • Donor profile records
      • Records maintained by the Department of Job and Family Services
      • Trade secrets
      • Information about the recreational activities of a minor
      • Certain records from the Child Fatality Review Board
      • Test materials or exams for licensure of a nursing home adminstrator
      • Financial statements and data that a person submits to the Ohio Housing Finance Agency

      See Ohio Rev. Code § 149.43(A)(1) for more information on the exemptions. Additionally, the Reporters Committee for Freedom of the Press’ Open Government Guide: Ohio also discusses the exemptions under Ohio’s public records law.

      How to Request Records in Ohio

      You can make the request in any way you choose, such as via mail or in person. Make your request as specific as possible so the records keeper can find the record. You are not required to provide a written request, although you may want to do so to better clarify your request. If a written request would help the agency better identify and locate the records, the records keeper may ask that you write the request. However, the records keeper must inform you that a written request is not required by law. See Ohio Rev. Code § 149.43(B)(5). Note that the law only applies to existing documents. The law does not require the agency to create a record in response to your request.

      Time limits

      Ohio law does not specify any exact time limits in which the agency must respond to your request. However, upon receipt of your request, the office must "promptly" prepare the records and make them available for inspection. If you have requested copies of the records, these copies shall be provided to you "within a reasonable period of time." See Ohio Rev. Code § 149.43(B)(1).

      Costs

      The public records law is unclear about the specific fees you may be charged for copies of records. Upon request, the office must make copies "at cost," whch means that they cannot profit from your request. The office can charge for "the cost involved in providing the public record," and you may be required to pay the fee in advance. See Ohio Rev. Code § 149.43(B)(6). The statute does not specify exact rates the agency may charge (such as a maximum cost per copy).

      What Are Your Remedies in Ohio

      If the public office denies your request, the office must provide you with a legal explanation for the denial See Ohio Rev. Code § 149.43(B)(3). If the public office is relying on an exemption, ask the records-keeper to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If you feel that the denial does not comply with the Public Records Act, your only remedy is to litigate the case. You can file an action for a writ of mandamus, which is an action asking the court to force the agency to comply with your request. If you prevail in court, you may be entitled to attorney's fees and/or a damage award. See Ohio Rev. Code § 149.43(C)(1). Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public office.

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      Access to Public Records in Pennsylvania

      Note: This page covers information specific to Pennsylvania. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect Pennsylvania's public records using the state's RTK Law. See section 702. You do not have to tell the records-keeper why you are seeking the information as you cannot be denied a request because of your reasons for wanting the information.

      What Records Are Covered in Pennsylvania

      What Government Bodies Are Covered

      You can access records from all commonwealth agencies, local agencies, legislative agencies, and judicial agencies. This includes all executive or state offices, boards, authorities, and departments. It also includes state courts and legislative bodies. See section 102.

      What Types of Records Can Be Requested

      You can access any record "that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency" as long as it is not otherwise exempt by the law. See section 102. The legislature has further defined a record to refer to information in any form, such as a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image- processed document.

      Exemptions

      A records-keeper may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      • the disclosure of a record that would result in an agency's loss of federal or state funds
      • the disclosure of a record that would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual
      • information that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity
      • a record that is designated classified by an appropriate federal or state military authority
      • information that, if disclosed, has a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system
      • a record which, if disclosed, would be reasonably likely to jeopardize computer security
      • a record of an individual's medical, psychiatric or psychological history or disability status, results of health-related tests, or enrollment in a health care program or program designed for participation by persons with disabilities
      • records containing personal identification information including a person's social security number; driver's license number; personal financial information; home, cellular or personal telephone numbers; personal email addresses; employee number or other confidential personal identification number; a spouse's name; marital status, beneficiary or dependent information
      • home address of a law enforcement officer or judge
      • certain documents pertaining to an agency employee, including:
      • letter of reference or recommendation (unless it was prepared in relation to the employee's filling in of an appointed position)
      • performance rating or review or test result
      • grievance material, including documents related to discrimination or sexual harassment
      • information regarding discipline, demotion or discharge contained in a personnel file (unless there is a final action of an agency that results in demotion or discharge)
      • academic transcript
      • the employment application of an individual who is not hired by the agency
      • an agency's workplace support services program information
      • information relating to labor relations or collective bargaining and related arbitration proceedings, but not the final or executed contract or agreement between the parties in a collective bargaining procedure
      • the draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment prepared by or for an agency
      • records concerning the internal, predecisional deliberations of an agency, unless the records were submitted to request Commonwealth funds, or are the results of public opinion surveys, polls, focus groups, marketing research or similar effort designed to measure public opinion
      • trade secret or confidential proprietary information
      • a public official or agency employee's personal notes and working papers
      • information that would disclose the identity of an individual who lawfully makes a donation to an agency unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official
      • unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works in progress, research- related material and scholarly correspondence of a community college or university
      • academic transcripts relating to the qualifications of an individual and to examinations given in primary and secondary schools and institutions of higher education
      • an agency record that concerns a criminal investigation, but not information contained in a police blotter
      • an agency record relating to a noncriminal investigation
      • information from audio recordings, telephone or radio transmissions received by emergency dispatch personnel, except time response logs (however, an agency or court could determine that the public interest in disclosure outweighs the interest in nondisclosure of a particular 911 recording)
      • DNA and RNA records
      • autopsy records, but not information about the name of the deceased individual and the cause and manner of death
      • draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency
      • minutes and records of discussions of an executive session
      • real estate appraisals and other evaluations made for or by an agency in consideration of the leasing or purchase of real property until a decision to lease or purchase is made
      • library records identifying individuals or groups of individuals
      • materials gifted to a library or museum that were contributed with certain conditions
      • a record identifying the location of an archeological site or an endangered or threatened plant or animal species if not already known to the general public
      • proposals pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract
      • communications between an agency and its insurance carrier, administrative service organization or risk management office
      • a record or information identifying an individual who applies for or receives social services
      • correspondence between a person and a member of the General Assembly and records accompanying the correspondence which would identify a person that requests assistance or constituent services, unless the individual is a lobbyist
      • records identifying the name, home address or date of birth of a child seventeen years of age or younger

      Read section 708(b) of the RTK Law for more information about the exemptions.

      How to Request Records in Pennsylvania

      You may request a record verbally or in writing. However, if the agency denies you access to the record, you can only pursue remedies under the RTK Law if your original request was in writing. Consequently it may be in your best interests to provide the agency with a written request. Try to make your request as clear as possible so that the records-keeper can identify and find the records. Your request must be addressed to the agency's open-records officer and may be mailed, emailed, or faxed. Also, be sure to include the name and address to which you want the records or response sent. See chapter 7.

      Time limits

      The agency must respond within five business days after receiving your request. If the agency fails to respond within this time period, your request is deemed denied. If the agency needs more time to fulfill the request (perhaps because the records are stored in a remote location), it must notify you within five business days and give you a reasonable date that it expects to respond. If the agency estimates that it will take more than thirty days to respond, then the request is deemed denied unless you specifically agree in writing to the extension. This means that an agency cannot make you wait more than 35 business days without your written consent. See chapter 9 for more information.

      Costs

      The agency may charge fees for postage (if you want the records sent to you), copying, certification, and conversion to paper (if the record is only maintained electronically and you want a paper copy). Generally, these fees must be reasonable, and copying fees should be comparable to duplication fees charged by local businesses.

      The agency may waive the fee if it is in the public interest to do so. Therefore, you may want to ask for a fee waiver if you think that you may meet this requirement. Hoewever, the agency has the discretion to determine whether a fee waiver is in the public interest. See section 1307 for more information.

      What Are Your Remedies in Pennsylvania

      If you think that the agency has wrongly denied your request, you can file an appeal with the Office of Open Records within fifteen business days. Your appeal should state why the record is a public record and the reasons the agency gave for denying the request. The Office of Open Records will assign the case to an appeals officer, who will make a final decision within 30 days. If you do not receive a response from the appeals officer within thirty days, the appeal is deemed denied. See chapter 11.

      If the appeals officer denies the appeal, you can file a petition for review in court. If a local agency denied your request, then you must file a petition in the court of common pleas for the county where the local agency is located. If a commonwealth agency, legislative agency, or judicial agency denied your request, then you must filed a petition in the Commonwealth Court. After reviewing the evidence, the Court will issue an opinion on the matter. See chapter 13. Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency. Keep in mind that the burden is on the agency to prove that the record is exempt. See section 708(a).

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      Access to Public Records in Tennessee

      Note: This page covers information specific to Tennessee. For general information concerning access to government records see the Access to Government Records section of this guide.

      See the note below regarding links to statutory provisions in this article.

      Tennessee's public record law (Tenn. Code Ann. §§ 10-7-101 to 10-7-702) has a very broad definition of what is "public," but under Tenn. Code Ann. § 10-7-503(a)(2)(A) applies only to requests by "any citizen of this state." If you are not in Tennessee but need public records in the state, you should find someone in the state to make requests for you. 

      Tennessee also has an extensive list of "confidential" information that is exempt from disclosure, so before making a request, make sure you are not requesting something that is protected in order to save yourself time.

      You do not have to declare your reason for wanting to access records, with the exception of certain records related to law enforcement (see below).

      What Records Are Covered in Tennessee

      What Government Bodies Are Covered

      The following departments are subject to the open records law: any legislative body; any common law, circuit, criminal or chancery court; register's books; surveyor's books; entry taker's books; any other records required by law to be maintained.

      What Types of Records Can Be Requested

      Any document, paper, record or book of a government body, or any pleading or other paper filed in a court, is considered a public record.

      Exemptions

      Tennessee has numerous very specific exemptions from its open records, set forth in Tenn. Code Ann. § 10-7-504. You should review the full list before requesting records. These exemptions are based upon confidentiality; therefore, the subject of the record can waive this confidentiality and release the record.

      For example, the following records and information are exempt from disclosure:

      • Medical records, student records, and personal identifying information of state employees
      • Any identifying information within reports maintained by the departments of corrections and/or probation and parole concerning the status of any criminal proceeding or convicted felon

      Also, any personal information about current or former public employees (including law enforcement) is protected. That information includes:

      • Home and cell phone numbers
      • Bank accounts, health savings accounts, retirement accounts
      • Social security number
      • Residential address information
      • Driver's license information unless driving is part of the job description
      • Any of the above information related to an employee's immediate family or household members
      Investigative records are also considered confidential, and the protection extends to any books, records or other materials that the office of the attorney general possesses for a legal or administrative proceeding.

      Particular care is needed when requesting a law enforcement officer's personnel files. Such records are presumptively open, but special rules and procedures apply.  You must provide your name, address, business telephone number and home telephone number, driver's license number or other identification when you request the record, and the date you inspected the records. The custodian must record this information and give it to the officer under Tenn. Code Ann. § 10-7-503(c)(1)-(3).

      The statute also defines a special category of "personal information" of law enforcement officers that receives special protection.  § 10-7-504(g).  This personal information includes an officer's residential address, phone numbers and place of employment, as well as the names, work addresses, and phone numbers of the officer's immediate family, and name, location and phone number of any school or daycare where the officer's spouse or child is enrolled.

      This personal information may ordinarily be redacted if the chief law enforcement officer (CLEO) or his designee determine, in their discretion, that there is a reason not to disclose. However, if the request is for a professional, business, or official purpose, the CLEO does not have unfettered discretion. Rather, he or she must consider the specific circumstances of the request, and follow a procedure detailed in the statute:

      (1) If the CLEO does not find a reason to withhold personal information in response to a request for a professional, business, or official purpose, the CLEO must disclose that information, but may still withhold a narrower category of information that is confidential under § 10-7-504(f).

      (2) If the CLEO does find a reason to withhold subsection personal information in response to a request for a professional, business, or official purpose, the CLEO may not automatically withhold that information; rather, the CLEO must notify the law enforcement officer in question of the request and give the officer an opportunity to be heard and to oppose the request. Presumably, if the officer does not oppose the release, the information must be disclosed.

      Regardless of the foregoing, the CLEO may redact/withhold information that could be used to identify or to locate an officer working undercover.

      It is not clear if newsgathering constitutes a "professional, business, or official purpose" because the statute does not define the phrase, and there is no case law clarifying the statute. However, one commentator has suggested that this phrase refers to inspection of the officer's personnel file for any "employment, business or professional purpose in connection with an official investigation." 

      If you are claiming a professional, business or official purpose, you must include in your open records request the following information: your business address, business phone number and e-mail address, along with the name, contact information and e-mail of a supervisor.  If the CLEO denies the request, he or she must give a reason, in writing, within 2 business days. You have the right to judicial review of this denial

      An otherwise public record may not be withheld in its entirety just because a portion of the information contained in the record is exempt from disclosure. Therefore, if an agency tells you that a portion of a record is confidential, you may have a right to request redaction of that portion and release of the remainder. The law also does not preclude any individual from giving consent to their confidential information being disclosed.

      How to Request Records in Tennessee

      Making the request

      The custodian of a record can ask that a records request be in writing, and can also require photo identification that includes the requester's address. Be ready to be asked for both. For certain law enforcement records, you will have to state if you have a professional, business or official purpose.

      Fulfilling the Request

      You should be able to inspect all records during business hours pursuant to Tenn. Code Ann. § 10-7-503. However, if it is not practical for the record to be promptly available, the custodian must, within 7 business days, make it available or else deny access and give you a reason. If it will take longer than 7 days, he may provide a response with the time he needs to produce the record.

      A government entity does not have to sort through files to comply with a request. If you are requesting extensive records, be ready to go through them yourself.

      No public official can be found liable for releasing records or for any damages that are caused as a result of release.

      If you have questions about the state's open meetings law, you can use educational programs and materials that the Office of Open Records Counsel must make available to you.

      Payment

      The custodian cannot charge you for just viewing the records where they are kept. County officials may provide electronic access or remote access to records, but also may charge users a reasonable access fee.

      You have a right to copy the record, but the custodian can make reasonable rules regarding copying. The county records commission has the power to establish fees for making copies of records.

      If you want a copy of a record that requires reproducing of a computer-generated map or some other geographic data that has some commercial value and was created with public funds, then under Tenn. Code Ann. § 10-7-506, the agency can impose a reasonable fee for its reproduction, in addition to an "additional fee." "Additional fees" may include: labor costs; costs in design of the content contained in the record; development testing and training for whatever content is in the record; and costs necessary to ensure accuracy of the record.  This additional fee is not to be levied on individuals who access the record for themselves. Newsgatherers can only be charged for the cost of copying.

      What Are Your Remedies in Tennessee?

      Under Tenn. Code Ann. § 10-7-505, if you are a citizen of Tennessee who has been denied access to public records, you can petition for judicial review in the chancery court or circuit court in the county where the records are kept. If you sue, under Tenn. Code Ann. § 28-3-110 you must do so within ten years of being denied access, though you are probably better served to file suit within a year or less.

      The court has full injunctive remedies to secure the purposes and intentions of the open records law. The act is to be construed so as to give the "fullest possible public access."

      If the court finds in your favor, it must make the records available unless the government appeals and the court certifies a substantial legal issue that an appellate court must resolve.

      In addition, if the court finds that the agency willfully refused to disclose a public record, it may assess all reasonable costs, including attorney fees against the agency.

      Additionally, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit.

       

      NOTE: The Tennessee Code is currently published by LexisNexis; all hyperlinks to statutes in this article will direct you to the LexisNexis web site.  Because the LexisNexis site does not permit linking to individual statutes, you will need to find the text of the statute you are looking for using the numbers assigned to the statute. The first number in the statute is the Title, the second number is the Chapter, and the third number is the specific Section (the first digit of the Section number also represents the "Part" of the statute, so Section 101 will be in Part 1). If you are interested, for example, in § 10-7-101 (that is, Title 10, Chapter 7, Section 101), after you click the link you can access the statute as follows:
      1. Agree to the terms of service;
      2. Scroll down to "Title 10" on the list that appears and click on the plus emblem next to "Title 10" in order to expand the entry for that Title;
      3. Scroll down within Title 10 to "Chapter 7" for public records and click on the plus emblem to expand that Chapter;
      4. Scroll down within Chapter 7 to "Part 1" and click on the plus emblem to expand that Part; and
      5. Click on the link provided for the specific Section in which you are interested.
      Alternatively, you can (1) agree to the terms of service, (2) type "10-7-101" into the search bar at the top of the Title list, and (3) click "Search."  This will also provide you with a link to the specific Section.

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      Access to Public Records in Texas

      Note: This page covers information specific to Texas. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of Texas’ public records using the state's Public Information Act. See chapter 552, section 21 of the Texas Government Code, (Texas Gov’t Code). However, the act does not require a governmental body to comply with requests from incarcerated individuals or their agents. See Texas Gov’t Code § 552.028.

      What Records Are Covered in Texas

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of all government bodies under the Texas Public Information Act. The term “government body” is defined broadly and includes city governments, county governments, and agencies. The Act also covers certain non-profit organizations and private entities that spend or are supported by public funds. See Texas Gov’t Code § 552.003. However, the Public Records law does not apply to the Texas state legislature or to the state courts. Consult Access to Government Meetings in Texas and Texas State Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of Texas’ government bodies, unless the records fall under an exemption (see below). The term "public record" refers to all information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by or for a government entity, regardless of the format of the information. See Texas Gov’t Code § 552.002.

      Exemptions

      A government body may refuse disclosure of the requested records if one or more of the following statutory exemptions applies:

      Refer to the Reporters Committee for Freedom of the Press’ Open Government Guide: Texas for more information about the exemptions under the Texas Public Information Act.

      How to Request Records in Texas

      Your request must be in writing. The Freedom of Information Foundation of Texas provides a helpful sample request letter.

      You may choose to mail, e-mail, or fax your request. Requests via mail do not need to be addressed to a certain person so long as you make it clear that you are submitting a request under the Public Information Act. However, requests via e-mail and fax must be addressed to the Officer of Public Information (the specific person at office who handles public records requests). If you are unsure who to address your e-mail or fax to, call the government body or search online for more information.

      Time limits

      The government body must respond to your request within a reasonable time. See Texas Gov’t Code § 552.228. However, if the agency believes that the record is exempt from disclosure, it must notify you within 10 days. If it fails to do so, then the record is presumed to be public and must be released See Texas Gov’t Code § 552.302. Note that the law only applies to existing documents. The law does not require the custodian of public records to create a record in response to your request.

      Costs

      Section 70 of the Texas Administrative Code provides detailed guidelines for when and how much an office may charge for copies of public information. If you just want to inspect the records, you should not be charged unless the information would take several hours to prepare and fills several boxes. See Rule 70.5. If you request paper copies of the records, you can be charged $.10 per page. You may be charged up to $15 per hour for search fees if your request is larger than 50 pages or if the documents are located separate facilities. You can also be charged labor costs if the records contain confidential information that must be redacted. See Rule 70.3.

      What Are Your Remedies in Texas

      If the officer at the government body believes that the record you have requested is exempt from disclosure, she must ask for a decision from the attorney general within 10 days of receiving the request. Within 10 days, the governmental body must also provide you (the requester) a written statement and a copy of its communications with the attorney general. See Texas Gov’t Code § 552.301. Any person may submit written comments to the attorney general stating reasons why the record should or should not be released. See Texas Gov’t Code § 552.304. Within 45 days, the attorney general must issue a ruling as to whether or not the record is exempt from disclosure. See Texas Gov’t Code § 552.306.

      If the attorney general rules that the record is exempt from disclosure and you disagree with this decision, you may file a lawsuit for judicial review of the attorney general's decision. The suit must be filed in a district court for the county in which the main offices of the governmental body are located Texas Gov’t Code § 552.321. Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency.

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      Access to Public Records in Virginia

      Note: This page covers information specific to Virginia. For general information concerning access to government records see the Access to Government Records section of this guide.

      If you are a citizen of Virginia, you have a statutory right to inspect a vast number of Virginia’s public records using the state's Freedom of Information Act (FOIA). See title 2.2, chapter 37 of the Virginia Code, (Va. Code), stating that "all public records shall be open to inspection and copying by any citizens of the Commonwealth . . ." You may be required to provide your name and address so the records-keeper can verify that you are a citizen of Virginia. Va. Code § 2.2-3704(A).

      What Records Are Covered in Virginia

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of "public bodies" under the state’s FOIA. The term "public body" is defined broadly and includes all cities, counties, school boards, planning commissions, legislative bodies, boards, bureaus, districts, or agencies of the Commonwealth. The statute also includes organizations, corporations, or agencies that are principally supported by public funds. Va. Code § 2.2-3701. You may wish to consult Access to Government Meetings in Virginia and Virginia State Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of Virginia’s public bodies. The term "public record" refers to all writings and recordings that are prepared, owned by, or in the possession of a public body, regardless of physical form. Va. Code § 2.2-3701.

      Exemptions

      Virginia’s FOIA lists over 100 specific types of records that are exempt from public disclosure. These include:

      Refer to the Reporters Committee for Freedom of the Press’ Open Government Guide: Virginia for more information about the exemptions under Virginia’s FOIA.

      How to Request Records in Virginia

      According to the Virginia Coalition for Open Government, you can make your request in any medium the public body itself uses, including e-mail. The Virginia FOIA does not specify that the request be in writing, but it will probably help the public body better understand your request if you make it in writing. Try to be as specific as possible in your request so the public body can find the exact records you are seeking. The Coalition offers this useful request letter generator which may help you create your request.

      Costs

      The public body may make "reasonable charges" for accessing, duplicating, supplying or searching for the records. However, these costs may not exceed the actual costs incurred by the body. At your request, the public body must estimate any charges in advance. Va. Code § 2.2-3704(F). If the public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may require the requester to agree to payment of a deposit in the amount of the advance determination before continuing to process the request. Va. Code 2.2-3704(H).

      Time limits

      Within five working days, the public body must either provide you with the records or tell you why they cannot comply with your request. Va. Code § 2.2-3704(B). The public body can get an additional seven days to fulfill your request if necessary. If the public body needs more time to respond to your request because it needs to search an extraordinary amount of records, it should contact you and try to come to an agreement about the production of the records. If this fails, then the public body can petition the appropriate court for extra time to comply with the request. 2.2-3704(C). If the agency does not respond to your request within the five working days, it is considered a denial of the request and constitutes a violation of the Virginia FOIA. Va. Code § 2.2-3704(E).

      What Are Your Remedies in Virginia

      If the public body denies your request or does not respond to your request, you should always first try to contact the body and resolve the issue. If the public office is relying on an exemption, ask the records-keeper to release the nonexempt portions of the record with the exempt portions removed or redacted.

      If you are not satisfied with the public body's response, you may file a lawsuit asking the court to force the body to comply. In such cases, the public body bears the burden of proving that the exemption was justified. Va. Code § 2.2-3713. Refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency.

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      Access to Public Records in Washington

      Note: This page covers information specific to Washington. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of Washington’s public records using the state's Public Records Act. See chapter 42, section 56 of the Revised Code of Washington, (Wash. Rev. Code). You are not required to tell the agency your purpose for requesting the reocrds, and the agency cannot "distinguish among persons requesting records." Wash. Rev. Code § 42.56.080.

      What Records Are Covered in Washington

      What Government Bodies Are Covered

      You are entitled to inspect and copy records of all state and local agencies under the Public Records Act. The term "public agency" is defined broadly and includes every public office, agency, department, division, bureau, board, commission, county, city, town, and municipal corporation. See Wash. Rev. Code § 42.56.010(1). However, the Public Records law does not apply to the Washington state legislature or to the state courts. Consult Access to Government Meetings in Washington and Washington State Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You can inspect all "public records" of Washington’s agencies. The term "public record" refers to any writing relating to the conduct of government or the performance of any governmental function that is prepared, owned, used, or retained by any state or local agency regardless of physical form. See Wash. Rev. Code § 42.56.010(2).

      Exemptions

      If another statute deems a record confidential or exempt from disclosure, then agencies cannot release the records. However, all exemptions listed in the Public Records Act are discretionary, which means that the agency can choose whether or not it wants to disclose the record. For a comprehensive explanation of all exemptions contained in the Act, see the attorney general's Open Government Manual.

      Some general categories of exemptions are as follows:

      Additionally, refer to the Reporters Committee for Freedom of the Press’ Open Government Guide: Washington for more information about the exemptions under the state’s Public Records Act.

      How to Request Records in Washington

      The Act does not specify that you have to make the request in any particular manner. However, it is always to your advantage to make you request as specific as possible. You may also want to provide a written request for clarity. See Wash. Rev. Code § 42.56.080. The Student Press Law Center's State Open Records Law Request Letter Generator can help you create a request letter that complies with Washington law.

      Time limits

      Washington agencies are required to promptly reply to requests for records. Within five business days of receiving your request, the agency must respond in one of three ways: (1) by providing the record, (2) by acknowledging your request and providing a reasonable estimate of the additional time the agency will require to comply with the request, or (3) by denying the request. See Wash. Rev. Code § 42.56.520.

      Costs

      The agency cannot charge you for inspection of records. However, if you would like copies of records, you may be charged a "reasonable" fee. The fee cannot exceed the agency's actual cost of copying the records. In general, the agency may not charge more than $.15 per page. Wash. Rev. Code § 42.56.120.

      What Are Your Remedies in Washington

      If your request is denied, the agency must give you its legal basis for the denial. If you disagree with this response, you have several options. You may:

      • Consult the state's Open Government Ombudsman to help you with your request.
      • Ask the state's attorney general to review the agency's determination.
      • File suit in court to enforce compliance.

      If you choose the second option, the attorney general will provide her written opinion as to whether or not the record is exempt. See Wash. Rev. Code § 42.56.530. If you choose the third option, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the public agency. Keep in mind that the burden is on the agency to prove that the record is exempt. See Wash. Rev. Code § 42.56.550.

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      Access to Public Records in the District of Columbia

      Note: This page covers information specific to the District of Columbia. For general information concerning access to government records see the Access to Government Records section of this guide.

      You have a statutory right to inspect a vast number of the District of Columbia’s public records using the Freedom of Information Act (D.C. FOIA). See section 2-532(a) of the District of Columbia's Annotated Code.

      You are not required to explain to a Freedom of Information Officer (FOI Officer), the government officer who controls or has access to public records, why you are making a request. Although you do not need to provide a reason, you may wish to do so as it may be relevant to the agency's determination of whether to rely on an exemption (see below) and deny your request. For example, if you request records which might be exempted as private information, and state that you are seeking the information because it is vital to a pressing issue of public concern, your reasoning may weigh in favor of granting you access to the records.

      What Records Are Covered in the District of Columbia

      What Government Bodies Are Covered

      Under the DC FOI Act, you are entitled to view the public records of any D.C. "public body", including:

      • the Mayor;
      • any subordinate or independent agency, including officers, employees, offices, departments, divisions, commissions; and
      • the Council of the District of Columbia.

      D.C. Code Ann. § 2-502(18A).

      However, the D.C. FOIA does not apply to intergovernmental agencies (e.g. the Washington Area Metropolitan Transit Authority, which was created by interstate compact), D.C. courts, or bodies under the exclusive control of the court (e.g. the Child and Family Services Division of the Department of Human Services). See Access to Government Meetings in D.C. and Access to D.C. Court Records for more information on how to access records from those government entities.

      What Types of Records Can Be Requested

      You are entitled to any "public records", including "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form characteristics prepared, owned or used in the possession of, or retained by a public body." See D.C. Code Ann. § 2-502(18). This includes records in hard copy or in electronic format.

      The records need not necessarily be created by the public body, or in the public body's possession, as long as they are under the public body's physical and legal control. You can also request records produced by a private person for a public body under contract (i.e. a delegated duty). D.C. Code Ann. § 2-5376(a)(6).

      What Exemptions Might Apply

      An agency can refuse to provide access to records covered by any of the following specific exemptions:

      • Trade Secrets and Commercial or Financial Information--disclosure of trade secrets and confidential commercial or financial information obtained from a party outside the government who faces commercial competition, to the extent that this information would harm their competitive position.
      • Privacy--all personal information (including but not limited to mental health records) is exempted from disclosure when disclosure would constitute an unwarranted invasion of an individual's privacy, which outweighs the public interest in disclosing it (in DC, disclosure of a record public is in the public interest if it throws light on an agency's performance of its statutory duties
      • Investigatory and Law Enforcement Records--investigatory records created or collected for law enforcement purposes are exempted when disclosure would interfere with enforcement proceedings investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques or endanger the lives of law enforcement officers.
      • Interagency Memos and Letters--these communications, including predecisional deliberations on policy, attorney work product, are exempt if they would not be legally available to a party in litigation with a public body.
      • Test Questions and Answers--test questions and answers to be used in future license, employment or academic examinations
      • Information Exempted by Other Statutes--information which is explicitly and specifically exempted from disclosure by another statute is exempted
      • National Defense--information exempted by the federal legislature due to foreign policy or national security concerns are also exempt under the D.C. FOI Act
      • Antitrust--information obtained through antitrust investigations are exempt
      • Arson investigations--information disclosed pursuant to local arson reporting laws are exempted
      • Terrorism--specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism are exempted.
      • Business Licensing Information--information provided to the Business License Center are exempted *Whisteblowers--information that would disclose the identity of a whistleblower is exempt unless the name of the whistleblowers is in the public domain.
      • Vital Records--Vital records such as birth certificates, and death, marriage, divorce, and annulment records, the disclosure of which is prohibited by the Vital Records Act, must not be disclosed under the D.C. FOI Act (NB: it is permissible to disclose a vital record to a person with a direct, tangible interest in that record.)

      See D.C. Code Ann. § 2-534(a).

      The public body bears the burden of proving that the exemption applies. If the FOI Officer can segregate non-exempt portions of the record or redact sensitive information, he must to do and provide those non-exempt portions to you. D.C. Code Ann. § 2-534(b). Visit Open Government Guide's discussion of exemptions for more information about the exemptions.

      How to Request Records in the District of Columbia

      You can make an oral or a written request to a public body for the records you wish to inspect. If the request is routine, call the agency and ask to speak with the FOI Officer to make your request. If the person you speak with cannot grant your request over the telephone, he should be able to provide you with guidance on the required written request.

      Apart from stipulating that public bodies must comply with any request "reasonably describing any public record," the D.C. FOIA does not set out particular information required in a letter, but the following information should be included, as appropriate:

      • Your name, address, email address and telephone number
      • A clear description of the specific record(s) that you are seeking, or, if you are uncertain of how to describe the records you wish to obtain, a description of your purpose in seeking records and a request that the agency assist you to identify relevant records
      • If you anticipate that the record may be hard to find, any search clues you can think of;
      • A statement that if portions of the records are exempted, the non-exempt portions of relevant records still be provide
      • Limitations on pre-authorized costs or a request for a fee waiver, and if relevant an explanation of why a fee waiver is appropriate because the information is sought in the public interest and not for personal reasons

      Alternatively, you can use the Student Press Law Center's State Open Records Law Request Letter Generator to produce a letter that complies with District of Columbia law.

      The FOI Officer has fifteen days to refuse or comply with your request, except in "unusual circumstances," in which case an agency may extend the deadline up to ten working days. D.C. Code Ann. § 2-532(c), (d).

      If you want a copy of the documents, you may need to pay a fee. The agency may charge you a fee that covers the actual costs of searching, reviewing and copying records. Note that you will be charged a lower fee (only the costs of duplication) if you can establish that your request is for a non-commercial purpose and that you are a representative of the news media. If the agency determines that furnishing the information is in the public interest, it may waive or reduce copying fees. You should state in your request why providing the requested records is primarily benefiting the general public and specifically request a waiver of fees as being in the public interest. See D.C. Code Ann. § 2-532(b).

      Note that the law only applies to existing documents. The law does not require a FOI Officer to create a record in response to your request (but he may do so at his discretion).

      What Are Your Remedies in the District of Columbia

      Although not provided for in the D.C. FOIA, ask the FOI Officer to review his decision denying your request. If refusal is based on one of the exemptions, ask the officer to use his discretion to waive the exemption, or to provide the non-exempt portions of the record. If you have no success with the FOI Officer, you could try to appeal the decision to their seniors within the agency.

      If you receive a formal denial letter, or no determination is made within the statutory time period, you are entitled to seek an administrative review. D.C. Code Ann. § 2-537(a).

      An administrative review entails an appeal to the Mayor to overturn the agency’s decision. The Mayor has delegated this function to the Secretary of the District of Columbia. D.C. Code Ann. § 2-537(a). An overview of the procedure of appealing to the Mayor is set out in the Open Government Guide. Briefly, an appeal is instituted by sending an appeal letter to the Mayor, stating that it this is a "Freedom of Information Act Appeal", setting out legal arguments why disclosure should be granted and enclosing copies of the request and the denial. If the Mayor refuses to grant your appeal, or fails to respond within ten working days, you still have the option to file a lawsuit. D.C. Code Ann. § 2-537(a)(1).

      If you wish to file a lawsuit to enforce compliance with your request, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the government entity.

       

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      Practical Tips for Getting Government Records

      While we can't guaranteed that you will get every government record you desire, the following tips will help ensure that you take full advantage of the wealth of information available through state and federal freedom of information laws.

      • Do some research to identify the agency or agencies that possess the records you seek. A little advanced research can go a long way. Often, the records you are seeking exist in more than one government agency or from both state and federal agencies. Find out where the documents are located and then use this guide to determine from which agency you have the greatest likelihood of getting the records. You should also research who the responsible officials are and where you should address your request(s). If you are looking for records held by the federal government, see the section on Finding and Getting the Federal Records You Seek. If you are interested in state and local government records, see the section on Access to Records from State Governments for guidance.

      • Exhaust informal means first. FOIA and its state counterparts are powerful tools for getting government information, but they are not the only means at your disposal to get the information you want. It's quite possible that someone else has already requested the records you seek and made those documents available online. A few well-crafted web searches might turn them up, or they might be available in the relevant agency's [Getting the Records|online reading room] or through one of the government records clearinghouses, such as GovernmentDocs.org and GovernmentAttic.org. If you can't find the information online, a phone call or letter to a sympathetic public official asking for the voluntary release of the information might be all you need.

      • Plan your request carefully. Again, it is wise to think about the information you want, when you need it, and how much you are willing to spend to get it. You should also spend some time researching whether any exemptions might apply to the information you are seeking. Most freedom of information requests run into problems because the information contained in the documents is subject to one of the many exemptions available under FOIA and its state FOI counterparts. See the FOIA Exemptions and Access to Records from State Governments sections of this guide for more information. By anticipating these exemptions, you may be able to tailor your request to get around the exemptions or provide reasons why the exemptions should not apply to your request (e.g., public interest, previous release of information to other requesters, inapplicability).

      • Send a clear and well written request. If you've done your research, you will know what records to ask for and whom to ask. Take the time to draft a clear description of the records you are requesting. Try and be as specific as possible: include the title and date of each document, the authors, recipients, and other identifying information if you know it. General requests -- such as "all files relating to X subject" -- are unlikely to get you what you want and will often result in delays and additional costs. Be sure and date and sign your request, include a return address, and keep a copy of all correspondence to and from the agency. You should also specify if you want the records released in electronic form or as physical copies.

      • Put a limit on the costs you are willing to pay. Under the federal FOIA and most state FOI laws, the responding agency can charge you for certain search and copying fees related to your request. Unless you want to be on the hook for thousands of dollars, you should specify in your request how much you are willing to pay. You should also state that if the fees will exceed that amount, you should be notified by the agency before it begins work on your request. You may be able to avoid some copying costs -- but not the search fees -- if you ask to review the records before the agency makes copies.

      • Request a waiver of fees, if appropriate. If you qualify for a waiver of the search, review, or copying fees, ask for a waiver in your request letter and clearly explain why your waiver request is justified under the applicable law. See the section on Costs and Fees under FOIA and Access to Records from State Governments for more information. If appropriate, emphasize that you are seeking the records not solely for a private, profit-making purpose and that you will be using the information to inform the public about the operations and activities of its government.

      • Anticipate delays and be patient. Government agencies are generally required to respond to your request within 10 to 20 working days, depending on the relevant FOI law involved. In practice, however, most agencies take much longer to respond, let alone to release records which can sometimes take months or even years. If you haven't received a response to your initial request within the require time period, you should write or call the agency to check the status of your request. While it usually helps to be understanding of their workload (almost all government agencies have FOI backlogs) ask them to commit to a response date and/or a release date for the records and hold them to it.

      • Be willing to compromise. You should anticipate that problems will arise. It could be that the agency needs more time to locate and review the records you've requested or that the information is covered by one or more exemptions. When appropriate, offer to revise or narrow the scope of your request to move things along. If you revise your request, however, be sure to make clear that your willingness to compromise is not considered a "new" request by the agency (a new request will start the clock running again). If the agency tells you that the records don't exist, ask them to describe their search methodology. Perhaps they aren't looking for the right things or in the right places. It might also help if you offer to resolve fee or fee waiver issues by paying a small amount.

      • File a lawsuit as a last resort. The simplest -- and often most effective -- remedy is to seek informal resolution of any disputes related to your request. A follow-up telephone call or email can sometimes get things back on track. If this fails to pry the records loose, your first recourse should be to use the internal appeal procedures (if they exist) within the relevant agency. See the sections on What Are Your Remedies Under FOIA and Access to Records from State Governments for more information. If your internal appeal is not successful, a lawsuit may be on the only way to get the records. Keep in mind, however, that obtaining records through legal action can be a costly and drawn-out process.

      Subject Area: 

      Access to Government Meetings

      Federal, state, and local governments often act through agencies, boards, committees, and other government "bodies." The most familiar examples of these kinds of government bodies are found at the local level -- they include school boards, city councils, boards of county commissioners, zoning and planning commissions, police review boards, and boards of library trustees. At the state level, examples include state environmental commissions, labor boards, housing boards, and tax commissions, to name a few. The executive branch of the federal government carries out its business through a number of agencies, many of which are governed by multi-member boards of directors or commissioners. Examples include the Securities and Exchange Commission, the Federal Communications Commission, the Federal Election Commission, and the Federal Housing Finance Board. A common feature of these agencies, boards, commissions, and other government bodies is that they meet as groups to deliberate or take action on public business. For instance, town zoning boards pass new zoning regulations and approve site plans, and state labor boards adopt workplace safety rules.

      Public access to these meetings is governed by a category of laws called open meetings laws. These important laws give anyone, including members of the traditional and non-traditional press, the ability to scrutinize and report first-hand on government meetings. They give you the right to attend the meetings of most federal, state, and local government bodies and to receive reasonable notice of those meetings. In many instances, they also entitle you to obtain copies of minutes, transcripts, or recordings at low cost. Open meetings laws thus open up a range of possibilities for fact-gathering and investigative reporting about the workings of government at every level. For example, they give you the right to attend the meeting in which the city council adopts its annual budget, the local school board discusses the curriculum, the state environmental board decides how to fight air pollution, or the FCC deliberates about network neutrality regulations. (You can multiply these examples hundred-fold.) And if you miss an important meeting, you can consult minutes or transcripts to catch up on what took place.

      Open meetings laws will be especially useful to you if you want to take your publishing activities beyond commenting on material from other online sources. They can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on meetings of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section of its site focusing on city government, which is largely based on slated meetings of the New York City Council.

      While both state and federal open meetings laws provide invaluable access to the actual workings of government, there are a number of challenges to effectively using these laws. For one thing, state open meetings laws are complex. They make use of complicated legal terminology to define what government bodies are covered and what kinds of gatherings qualify as a "meeting." Even more importantly, both federal and state open meetings laws provide specific exemptions that allow government bodies to close meetings or portions of meetings to the public when they deal with certain subject matters, like pending litigation, the purchase of real estate, and official misconduct. These exemptions generally allow government bodies to hold a closed session when they are dealing with private information about an individual, trade secrets, or other confidential documents. The specific definitions and exemptions that will apply in a particular situation, as well as the character of your rights, will depend on what state you are in and whether you are dealing with a federal or state government body. (Note: if you are not sure whether the meeting you would like to attend is part of a federal, state, or local governmental body, you might find the section on Identifying Federal, State, and Local Government Bodies helpful.)

      You should also be aware that the open meetings laws discussed in this section do not give you unlimited access to all government meetings. For example, neither the Government in the Sunshine Act nor the Federal Advisory Committee Act provide a right of access to legislative meetings, court proceedings, or meetings of executive departments or the President's staff. Other laws, however, may provide you with access to these proceedings. To learn more about your ability to access Congress's legislative sessions, committee hearings, and documents see Access to Congress. To learn more about your ability to attend court proceedings and to obtain court documents, see Access to Courts and Court Records. No law gives you the right to attend federal executive department meetings, but note that the Federal Advisory Committee Act allows you to attend meetings of advisory committees that assist the President. Consult the Access to Presidential Records section for information about what presidential documents are available for public use.

      The following pages in this section will help you to understand and use open meetings laws intelligently:

      • Access to Federal Agency Meetings: Access to federal agency meetings is governed by the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, such as the Securities and Exchange Commission and the Federal Trade Commission. This section provides an overview of this law and describes your right to attend federal agency meetings.

      • Access to Federal Advisory Committee Meetings: Federal advisory committee meetings are governed by a different law. The Federal Advisory Committee Act allows you to attend the meetings of advisory boards and committees that advise agencies of the federal government. This section provides an overview of this law and describes your right to attend federal advisory committee meetings.

      • Access to State and Local Government Meetings: State open meetings laws entitle you to attend the meetings of a large number of state and local government bodies. This sections provides information about your right to attend meetings in your state.

      Subject Area: 

      Access to Federal Agency Meetings

      The Government in the Sunshine Act ("Sunshine Act") governs the right of access to federal agency meetings. Congress passed the Sunshine Act motivated by the idea that citizens have a right to know how the government makes decisions that affect the public interest. The Sunshine Act allows you to attend meetings in which federal agency heads deliberate on agency business. It requires all federal agencies governed by “collegial bodies” to hold open meetings and to provide sufficient notice to allow the public to attend those meetings. The term “collegial bodies” refers to groups of two or more decision-makers that act jointly, such as boards of directors or multiple commissioners. Agencies covered by the Sunshine Act include powerful and important bodies such as the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), and the Federal Trade Commission (FTC), as well as lesser known agencies, such as the Marine Mammal Commission, the Railroad Retirement Board, and the Advisory Board for Cuba Broadcasting.

      If a covered agency has improperly prevented you from attending a meeting, you may sue the agency in federal court. Among other things, you can obtain a court order prohibiting future violations of the Sunshine Act and a transcript of an improperly closed meeting.

      Meetings and Agencies Covered

      The Government in the Sunshine Act entitles you to attend many government meetings, but it does not apply to every gathering of every government body. There are two important limitations: the law only applies to meetings of certain kinds of agencies, and it only applies to certain kinds of gatherings. Below we take up these issues in turn.

      Which Agencies Are Covered?

      The Sunshine Act applies to the meetings of federal agencies. An "agency" is a branch of government responsible for the oversight and administration of laws. For instance, the Department of Labor and the Federal Trade Commission are both agencies. Judiciary and legislative bodies, such as courts and congressional committees, are not agencies. For more examples of federal agencies, see Wikipedia's List of United States federal agencies. The Sunshine Act does not apply to any state or local agencies or private entities.

      The Sunshine Act only requires certain kinds of agencies to hold open meetings. Some agencies, such as the Environmental Protection Agency, are headed by a single individual, while other agencies, such as the Federal Communications Commission, have more than one head who together run the agency. The Sunshine Act only covers requires the latter type of agency -- agencies headed by a collegial body of two or more members. Moreover, the Sunshine Act only applies to an agency when a majority of the members of its collegial governing body were appointed by the President of the United States and subject to confirmation by the Senate. If a majority of an agency's heads don't fit this description, the agency does not have to hold open meetings. As of 2005, the Sunshine Act required sixty-seven agencies to hold open meetings. Included are many important agencies, such as the SEC, the Federal Elections Commission, and the Federal Energy Regulatory Commission. For a partial list, see Appendix A of the Florida Bar's Reporter's Handbook.

      • Agency Subcommittees

      If the Sunshine Act applies to an agency, it also applies to certain subcommittees or "subdivisions" of that agency. Specifically, it applies to subcommittees that are "authorized to act on behalf of the agency" and that include at least one member of the collegial body that governs the agency. Therefore, to be covered a subcommittee must have official and formal powers to regulate, derived from a delegation of authority from the governing body of the agency. For example, if the Commissioners of the Commodities Futures Trading Commission created a subcommittee and authorized it to act for the agency with regard to regulation of corn futures, that subcommittee would be subject to the open-meetings requirements of the Sunshine Act.

      Which Types of Meetings Are Covered?

      The Sunshine Act only applies to certain kinds of meetings. First, at least the number of agency heads required to take action on behalf of the agency must attend the gathering in question. This is the "quorum" requirement. For instance, if an agency can only take legal action if three of its five heads are present, a meeting of two heads need not be open. In the case of an agency subcommittee, a quorum of subcommittee members must be present to constitute a "meeting," but this need not be a quorum of the whole collegial body that governs the agency.

      Second, the agency heads must be acting "jointly." The quorum of agency heads in attendance must be involved in the decisionmaking or discussion being conducted. For example, a speech by one agency head, when the other heads are in the audience passively listening, will not constitute a meeting that must be open to the public under the Sunshine Act.

      Third, the meeting must involve "deliberation" of agency business. The Sunshine Act does not define "deliberation," but legislative history indicates that Congress meant the term to apply to situations beyond those where agency heads take formal action and to include all significant discussions in which a quorum of members address agency business. On the other hand, the term does not apply to informal background discussions that clarify issues and expose varying views.

      An emerging question is whether electronic communication can constitute a meeting that must be open to the public. For instance, if agency heads exchange views via email on a matter of agency business, is that a meeting that must be open to the public? Richard K. Berg, Stephen H. Klitzman, and Gary J. Edles, authors of the American Bar Association's Interpretive Guide to the Government in the Sunshine Act (2d ed. 2005), argue that the Sunshine Act is not limited to face-to-face communications. They note that Congress intended for telephone conference calls to be covered and argue that whether an electronic communication is a "meeting" depends on whether agency heads are communicating simultaneously. For example, a flurry of instant messages between agency heads might be covered because it takes place (relatively) simultaneously. On the other hand, an email exchange taking place over the course of several days would not be a meeting because of the lack of simultaneity. In any event, the law is unclear on this point, and it is unlikely that you will have knowledge of or occasion to challenge the email or instant messaging practices of federal agency heads.

      Understanding Your Rights

      Attendance

      The Sunshine Act gives "the public" the right to attend covered meetings. The law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. However, an agency may close a portion of a meeting to the public under certain circumstances, discussed below.

      Notice

      In order to attend a meeting, you need to know about it first. To address this, the Sunshine Act requires agencies to give notice of their meetings to the public at least one week in advance. The notice must state the time, place, and subject matter of the meeting, and whether the meeting will be open or closed to the public. The notice must also give the telephone number of an official who can answer questions about the meeting. If the agency changes the time, location, or agenda, it must announce the change as soon as possible.

      The agency must publish notice in the Federal Register, which is a daily government publication containing routine notices. Since most people do not read the Federal Register, agencies must take additional steps to notify the public. Today, many agencies publish notice of meetings on their websites. Agencies might also post notice on public announcement boards, publish announcements in local newspapers, send announcements on a mailing list, or publish an online digest. Check the websites of the agencies you are interested in for details.

      Recording

      The Sunshine Act does not grant any right to record, photograph, or televise a meeting. As a result, agencies have discretion to permit these activities or not. As a matter of practice, a number of agencies do allow the use of recording devices at meetings. Nevertheless, the agencies that allow recording may put limits on what devices you can use. For instance, the FCC allows only audio recordings during meetings, as well as allowing still, non-flash photography prior to meetings. Some agencies, such as the Nuclear Regulatory Commission, require that you obtain permission in advance to record a meeting.

      Participation

      The Sunshine Act does not give you any right to participate in meetings. Although they are not obligated to do so, some agencies allow the public to participate, subject to limitations designed to maintain order. Agencies may prevent attendees from displaying disruptive posters and signs at public meetings. However, they may not discriminate against signs or other materials based on the viewpoints expressed.

      An Exception: Closed Meetings

      In certain circumstances, agencies may close portions of meetings to the public. Agencies may only close those portions of meetings that qualify for a statutory exception and must try to keep as much of a meeting open as possible. Agencies may close a portion of a meeting when that portion would:

      • disclose classified national security or foreign policy matters;
      • relate only to internal personnel management of the agency;
      • disclose information protected by statute;
      • disclose protected, confidential trade secrets or personal financial or commercial information;
      • involve accusing someone of a crime or formally censuring someone;
      • disclose personal information such as to constitute an invasion of privacy;
      • disclose law enforcement investigation records, information, or techniques, or endanger the physical safety of law enforcement officials;
      • disclose information prepared by, or for the use of, an agency responsible for the regulation of financial institutions;
      • prematurely disclose information in a way that would harm the implementation of agency action or cause financial speculation; or
      • specially concern an agency's participation in certain formal legal processes.

      Agencies are not obligated to close meetings in the above circumstances; they merely are permitted to do so. Moreover, the Sunshine Act says that an agency should take the public interest into account and should not close a meeting, even when it could, if it would be in the public interest for the meeting to be open.

      Agencies may only close meetings by a majority vote of all agency heads. The agency's chief legal officer must write an official explanation of why the meeting has been closed. Agencies generally must maintain a transcript or electronic recording of closed meetings and make all non-exempt portions of the transcript or recording available to the public. Even for a closed meeting, an agency must provide public notice of when and where the meeting will occur and what the agency will discuss.

      Your Remedies if You Are Denied Access

      The Sunshine Act gives "any person" the right to file a lawsuit in federal district court for violations of its requirements. If you win a lawsuit of this kind, you can obtain an injunction against future violations by the agency -- that is, a court order to hold open meetings in the future. You can also obtain a transcript of an improperly closed meeting. You cannot obtain money damages or an order voiding agency action taken at an improperly closed meeting. Strict time limits apply. If you choose to file a lawsuit, you must do so within sixty days after the meeting giving rise to your complaint. If you bring a lawsuit and succeed, the court may award you reasonable litigation expenses and attorneys' fees. On the other hand, a court may order you to pay an agency's attorneys' fees, if it determines that you brought the lawsuit for frivolous reasons or to delay agency action. This would not happen unless your legal claim were utterly and obviously without any merit.

      However, a lawsuit is often a slow and expensive solution, so it is generally better to resolve a dispute without going to court. In the event that you are denied access to a meeting, you should contact the agency in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the agency continues to deny your request for access, you should consider filing a lawsuit. Keep in mind the sixty-day time limit noted above. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Subject Area: 

      Access to Federal Advisory Committee Meetings

      The Federal Advisory Committee Act ("FACA"), located at 5 U.S.C. App. 2, gives you a right of access to the meetings of federal advisory committees. Advisory committees are groups formed by the government to give advice or make recommendations to the the President of the United States or a federal agency. Their membership usually consists of a mix of government officials and private citizens with expertise relating to a specific issue of government concern. If an advisory committee improperly prevents you from attending or contributing to a meeting, or denies you access to documents prepared by or for committee members, you may sue the federal agency that supervises the committee in federal court. Among other things, you can obtain a court order prohibiting future violations of FACA and a transcript of an improperly closed meeting.

      Meetings Covered

      FACA entitles you to attend many government meetings, but it does not apply to every gathering of every government body. There are two important limitations: the law only applies to the meetings of certain types of committees, and it only applies to certain kinds of gatherings. Below we take up these issues in turn.

      What Government Bodies Are Covered?

      FACA gives you rights with respect to the meetings of federal advisory committees. The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, which is created "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. App. 2, § 3 (scroll down). To come under FACA, an advisory committee also must be

      • established by statute or reorganization plan;
      • established or utilized by the President; or
      • established or utilized by one or more federal agencies.

      In addition, it must have at least one member who is not a government official.

      There are over 1,000 federal advisory committees, dealing with topics large and small. It's somewhat hard to get your head around what an advisory committee is without some examples. The United States National Commission for the United Nations Educational, Scientific, and Cultural Organization (UNESCO) is an advisory committee with members from federal, state, and local government as well as non-governmental organizations. It makes recommendations to the State Department on matters relating to international development and humanitarian aid. For another example, the Visiting Committee on Advanced Technology is an advisory committee with members mostly from private technology companies that advises the Department of Commerce on emerging technology issues. The U.S. Air Force Board of Visitors is an advisory committee created by an Act of Congress, which is made up of private citizens and members of Congress, and which acts like a board of trustees for the Air Force Academy. To explore the government's list of advisory committees, conduct a search at the FACA database. Click "Public Access" and then "Committees Search" to get started. There, you can search for advisory committees by name or area of interest.

      A few advisory committees are exempt from the open meetings requirements. Advisory committees established by the National Academy of Sciences, the National Academy of Public Administration, the CIA, and the Federal Reserve Board do not need to meet the open-meetings requirements discussed below.

      What Is A "Meeting"?

      A "committee meeting" means "any gathering of advisory committee members (whether in person or through electronic means) held with the approval of an agency for the purpose of deliberating on the substantive matters upon which the advisory committee provides advice or recommendations." 41 C.F.R. § 102-3.25 (emphasis added). The term "meeting" does not include situations where committee members get together solely to gather information, conduct research, or analyze relevant issues and facts in preparation of a meeting. It also does not include situations where committee members gather solely to discuss administrative matters of the advisory committee or to receive administrative information from a federal official or agency. See 41 C.F.R. § 102-3.160.

      Understanding Your Rights

      Attendance

      FACA gives "the public" the right to attend advisory committee meetings. The law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. However, the President may choose to close advisory committee meetings for reasons of national security, and an advisory committee may close portions of meetings to the public under certain circumstances, discussed below.

      Participation

      FACA also gives you a right to submit your views to an advisory committee, which means that you are entitled to appear before it or file statements with it. A committee may place reasonable limitations on this right of participation.

      Notice

      In order to attend a meeting, you need to know about it first. To address this, FACA requires advisory committees to give notice of their meetings to the public at least 15 days before the meeting. The notice must state the time, place, and purpose of the meeting, the name of the committee, and the topics to be discussed. The notice must also state whether all or part of the meeting will be closed to the public and give the telephone number of an official who can answer questions about the meeting. See 41 C.F.R. § 102-3.150.

      An advisory committee must publish notice in the Federal Register, which is a daily government publication containing routine notices. Since most people do not read the Federal Register, committees generally take additional steps to notify the public of their meetings. You can find notices for upcoming advisory committee meetings using the FACA Database.

      Recording

      FACA does not grant you any right to record, photograph, or televise a meeting. As a result, it is up to the committee's discretion whether to allow you to do so.

      Transcripts and Documents

      FACA requires advisory committees and the agencies supervising them to provide transcripts of committee meetings to the public at the cost of duplication. The law also requires advisory committees to keep detailed minutes of their meetings.

      Subject to certain exceptions, FACA also gives you the right to inspect the documents, reports, and other records made available to or prepared for or by an advisory committee (which includes minutes). You are entitled to inspect these documents before or at the time of the meetings to which they apply. You can also inspect these materials after the meeting in question by visiting the relevant agency or advisory committee headquarters, and you can get copies for a small fee. An agency or advisory committee may not require you to use Freedom of Information Act (FOIA) procedures in order to obtain access to these documents, but an agency or advisory committee may invoke the statutory exemptions to the disclosure of documents found in FOIA in order to deny access to them. For more information on FOIA procedures and exemptions, see the Access to Records from the Federal Government section.

      An Exception: Closed Meetings

      In certain circumstances, advisory committees may close portions of meetings to the public. Committees may only close those parts of meetings that qualify for a statutory exemption and must try to keep as much of a meeting open as possible. Advisory committees may close a portion of a meeting when that portion would:

      • disclose classified national security or foreign policy matters;
      • relate only to internal personnel management of the agency;
      • disclose information protected by statute;
      • disclose protected, confidential trade secrets or personal financial or commercial information;
      • involve accusing someone of a crime or formally censuring someone;
      • disclose personal information such as to constitute an invasion of privacy;
      • disclose law enforcement investigation recrods, information, or techniques, or endanger the physical safety of law enforcement officials;
      • disclose information prepared by, or for the use of, an agency responsible for the regulation of financial institutions;
      • prematurely disclose information in a way that would harm the implementation of agency action or cause financial speculation; or
      • specially concern an agency's participation in certain formal legal processes.

      The supervising agency's chief legal officer must write an official explanation of why the meeting has been closed. Committees generally must maintain a transcript or electronic recording of closed meetings and make all non-exempt portions of the transcript or recording available to the public. Even for a closed meeting, a committee must provide public notice of when and where the meeting will occur and what it will discuss.

      In addition, as noted above, the President can close meetings for national security reasons.

      Your Remedies if You Are Denied Access

      FACA itself does not authorize a private citizen to bring a lawsuit for violation of its open-meetings and document-disclosure requirements. Whether a court would grant such a right to bring a lawsuit is uncertain, but doubtful. Nevertheless, the Administrative Procedure Act (APA) may enable you to bring a lawsuit in federal court for violations of FACA. Under the APA, you can sue the federal agency that supervises the advisory committee and committee members who are federal agency officials. It does not look like the APA authorizes you to sue the advisory committee itself, or the President or Vice President, regardless of their role in creating or utilizing the advisory committee in question. If you win a lawsuit under the APA, you can obtain an injunction against future violations by the advisory committee -- that is, an order to hold open meetings or provide documents in the future. You also can obtain a transcript of an improperly closed meeting. You cannot, however, obtain money damages.

      However, a lawsuit is often a slow and expensive solution, so it is generally better to resolve a dispute without going to court. In the event that you are denied access to a meeting, you should contact the advisory committee or supervising agency in question and indicate that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the advisory committee or agency continues to deny your request for access, you should consider filing a lawsuit. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Subject Area: 

      Access to State and Local Government Meetings

      All fifty states and the District of Columbia have enacted open meetings laws. These laws generally require state and local agencies, commissions, boards, and councils to provide advance notice to the public of their meetings, to permit any member of the public to attend them (although not necessarily to participate), and to provide minutes, transcripts or recordings of meetings upon request at little or no cost. While many of these laws are similar to the Government in the Sunshine Act and the Federal Advisory Committee Act in certain respects, significant variation exists on a state-by-state basis.

      Choose your state from the list below for state-specific information on open meetings laws. (Note: This guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

      Subject Area: 

      Open Meetings Laws in California

      Note: This page covers information specific to California. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      California law provides you with a right of access to the meetings of a large number of government bodies at the state and local level. There are two separate statutes providing the right of access to meetings: the Bagley-Keene Act (full text) and the Brown Act (full text). Together, these two Acts permit any member of the public to attend any meeting of a "state body" or a "legislative body of a local agency," subject to specific exceptions. They also entitle you to receive advance notice of the meetings and to inspect and copy meeting minutes.

      The material below gives a broad outline of some important aspects of California open meetings laws. For more details, consult The Reporters Committee for Freedom of the Press's Open Government Guide: California. In addition, the California Attorney General's office has published two useful guides on California open meetings laws: A Handy Guide to the Bagley-Keene Open Meeting Act and The Brown Act: Open Meetings for Local Legislative Bodies.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      One California open meetings law, the Bagley-Keene Act, applies at the state government level. Specifically, it applies to the meetings of a "state body." A "state body" refers to state boards, state commissions, and similar multi-member bodies of state government that are required to hold official meetings. These state bodies include executive agencies like the California State Board of Equalization. A comprehensive list of these agencies is available at California's State Agencies Directory. The term "state body" also applies to committees, boards, and commissions who exercise authority delegated to it by a "state body" (as defined above), and to advisory committees or groups if they are created by formal action of a state body and have more than three members. The term may also apply to a board, commission, or agency that appears to be private or non-governmental in nature, if it receives funds provided by a "state body" and includes a member of a state body serving in his or her official capacity.

      The second California open meetings law, the Brown Act, applies at the local government level. Specifically, it applies to the meetings of a "legislative body of a local agency." The term "local agency" includes all cities, counties, school districts, municipal corporations, special districts, and all other local public entities. The term "legislative body" refers to the governing bodies of these local agencies, such as a county board of supervisors, the board of a public works agency, a city council, or a local school board. A number of other government and semi-private bodies may fit into the category of "legislative body of a local agency." Consult the Attorney General's guide for details.

      The Bagley-Keene Act and the Brown Act do not apply to bodies of the California State Legislature. Another open meetings law governs the State Legislature and requires that meetings of either house and their committees be open to the public. The Bagley-Keene Act and the Brown Act do not apply to federal government bodies.

      What is a Meeting?

      In addition to determining what government bodies are covered by the open meetings laws, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public).

      For state bodies, the Bagley-Keene Act defines a meeting as "any congregation of a majority of the members of a state body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the state body to which it pertains." For legislative bodies of local agencies, the Brown Act defines a meeting as "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." Ordinarily, a meeting involves some sort of action taken by the public body (resolutions passed, decisions made, etc.), but the term "meeting" applies to deliberations and information-gathering or fact-finding sessions as well. These definitions of meeting are broad and include any gathering of a majority of members in order to discuss and carry out the body's public business. It would not include purely social and ceremonial gatherings, nor would it likely apply to an academic conference or similar event that a majority of members happened to attend.

      A meeting may take place by teleconference (either audio only or both audio and video), but the meeting must (1) comply with all of the other requirements of the open meetings laws (e.g., notice requirements); (2) be audible to the public at the location specified in the notice of the open meeting; (3) have at least one member of the government body physically present at the location specified in the notice of the meeting.

      The Brown Act specifically prohibits members of legislative bodies of local agencies from using the telephone, email, or other electronic communications to make group decisions without holding formal meetings (thereby circumventing the public right of access). While the Bagley-Keene Act has no similar provision, a court would likely find a violation of that Act as well, if a member of the public established that a state body was purposefully circumventing open meetings requirements by making decisions via email or other electronic means.

      What Are Your Rights?

      Attending Meetings

      The California open meetings laws give you the right to attend the meetings of state bodies and the legislative bodies of local agencies, with an exception for closed meetings and sessions discussed below. California law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend a meeting that falls under the requirements of the Bagley-Keene Act and the Brown Act.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, California open meetings laws require covered government bodies to post notice of their regular meetings in a publicly accessible place and to mail notice to those persons who have specifically requested notice.

      State bodies covered by the Bagley-Keene Act must post notice of their meetings on the Internet at least 10 days beforehand. They must also mail notice to anyone who has requested notice in writing (this appears to be free). The notice must give you the time, date, location of the meeting, and the name, address, and phone number of a person who can provide further information before the meeting. It also must contain a specific agenda for the meeting, including a brief description of items to be discussed.

      Legislative bodies of local agencies covered by the Brown Act must post an agenda for their meetings in a place that is freely accessible to members of the public at least seventy-two hours beforehand. It also requires the legislative body to mail a copy of the agenda to anyone who has requested notice in writing. The body may charge a fee for mailing notice, but the fee cannot exceed the actual cost of the service.

      The open meetings laws also provide for "special" and "emergency" meetings under specified circumstances. Different notice requirements apply to those kinds of meetings. For details, see the Open Government Guide: California.

      Minutes, Recordings, and Documents

      You have a right to obtain copies of the minutes of open meetings under the California Public Records Act. The governmental body from which you request minutes may charge a fee or deposit. Additionally, you are entitled to inspect any writing or document distributed to members during a meeting. If a document was prepared by the governmental body itself, you are entitled to inspect it at the time of the meeting. If a document was prepared by someone else, you are entitled to inspect it after the meeting.

      Governmental bodies may, but need not, make audio recordings of their meetings. If the body chooses to record its meetings, those recordings are public records, just like ordinary minutes.

      You are not entitled to copies of the minutes or recordings of closed sessions or meetings (discussed below), unless you can prove to a court that a closed session was held in violation of the open meetings laws or that discussion in a closed session strayed from the topics listed in the agenda.

      For information on your ability to use recording devices at public meetings, see California Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that state bodies and legislative bodies of local agencies must hold their meetings open to the public. They may exclude members of the public from their meetings only if they identity a specific statutory exemption and meet other procedural requirements.

      Under the Bagley-Keene Act, a state body may hold a closed session when it is dealing with one of twenty-eight subject-area exemptions listed in Cal. Gov't Code § 11126 (scroll down). If the state body is dealing with one of these enumerated subject areas, then it must also meet the following procedural requirements:

      • The state body must hold the closed session as part of a regular or special meeting.
      • During the regular or special meeting, the body must disclose the nature of the items to be discussed in closed session (before the closed session takes place).
      • The state body must provide advance notice (ten days) to the public of its intention to hold a closed session.
      • This notice must contain a specific agenda for the closed session, describing in general terms the items of business to be discussed, and a citation to the specific statutory authority under which the body claims an exemption from the open meetings laws.

      Under the Brown Act, a legislative body of a local agency may hold a closed session or meeting when it is dealing with one of thirteen subject-area exemptions found in Cal. Gov't Code §§ 54956.7 - 54957.8 (scroll down). If the legislative body is dealing with one of these enumerated subject areas, then it must also meet the following procedural requirements:

      • The legislative body must disclose in an open meeting prior to the closed meeting or session the nature of the items to be discussed.
      • The legislative body must post an agenda for the closed meeting or session at least seventy-two hours beforehand. The agenda must describe the items to be discussed in a general way, but need not invoke the specific statutory authority under which the body claims an exemption from the open meetings laws.

      Note that these exemptions permit a government bodies to close a meeting; they do not require these bodies to do so. For more details on exemptions, be sure to check out the Open Government Guide: California, A Handy Guide to the Bagley-Keene Open Meeting Act, and The Brown Act: Open Meetings for Local Legislative Bodies.

      What Are Your Remedies If You Are Denied Access?

      In California, any member of the public may file a lawsuit in California state court for violations of the open records laws. If you win such a lawsuit, you can obtain a court order prohibiting a government body from violating the open meetings laws in the future. For example, a court might order a government body to allow you to attend meetings from which it had previously excluded you. You can also obtain a declaration that past government actions violated the open meetings laws and have the court invalidate past actions taken in violation of those laws. A court may award you attorneys' fees if you prevail in a lawsuit.

      If you want to bring a lawsuit to invalidate the action of a local agency, you generally must make a written demand on that agency within ninety days of the meeting in question. You must do this within thirty days when the action you are complaining about took place in an open session but was not listed on the noticed agenda. If the local agency fails to cure the problem within thirty days of receiving your demand, then you may file suit. If you want to invalidate the action of a state body, you must file suit within ninety days of the decision or action you are challenging. Note: these time limits and the demand requirement only apply if you want to have past agency action invalidated; if you just want an order prohibiting future violations, you do not have to satisfy these requirements.

      However, a lawsuit usually is a slow and expensive solution, so it is generally better to resolve a dispute without going to court. In the event that you are denied access to a meeting, you should contact the government body in question and indicate that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the governmental body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      For additional details on your legal remedies under the California open meetings laws, see A Handy Guide to the Bagley-Keene Open Meeting Act and The Brown Act: Open Meetings for Local Legislative Bodies.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Florida

      Note: This page covers information specific to Florida. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Florida Constitution and the Florida Sunshine Law (full text) provide the public with a right of access to the meetings of a large number of government bodies at the state and local level. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. Florida's law relating to open meetings is unusually complex. You should consult the Florida Attorney General's Government-in-the-Sunshine Manual and the Reporters Committee for Freedom of the Press's Open Government Guide: Florida for detailed information.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Florida Sunshine Law covers any "public collegial body." The law defines "public collegial body" as: "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision." Fla. Stat. § 286.011. In addition, the Florida Constitution's open meetings provision applies to the meetings of "any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district." Fla. Const. art. I, § 24(b). The word "collegial" means having more than one member.

      The coverage of these two provisions is extremely broad. According to an FAQ published by the Florida Attorney General, "[v]irtually all state and local collegial [i.e., multi-member] public bodies are covered by the open meetings requirements with the exception of the judiciary and the state Legislature which has its own constitutional provision relating to access." The State Commissions and Boards page on the Florida Government Information Locator lists many of the state boards and commissions covered by the law. On the local level, the Sunshine Act covers county and city commissions, school boards, and planning and zoning boards, among other things. It does not apply to federal government bodies.

      For more information on what government agencies are covered, see the Open Government Guide: Florida and the Brechner Center's Citizen's Guide to Government in the Sunshine.

      What is a Meeting?

      In addition to determining what government bodies are covered by Florida law, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). Under the Florida Sunshine Law, a "meeting" is any gathering of two or more members of a public body to discuss or take action regarding official business or policy. The term also applies to information-gathering and fact-finding sessions called by the public body. According to the Attorney General, "[t]he law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission."

      Telephone conversations and email between members of a board, commission, or other multi-member public body may qualify as a "meeting" under the law. If members use telephonic or electronic communication simply to communicate factual information and do not exchange comments and views on subjects requiring group action, however, then the open meetings requirements do not apply. See Fla. Stat. § 286.011

      What Are Your Rights?

      Attending Meetings

      The Florida Constitution and Sunshine Act give "the public" the right to attend the meetings of public collegial bodies, with exceptions for closed meetings discussed below. Florida law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      Florida law also recognizes a public right to comment during open meetings, but the public body holding the meeting may adopt reasonable rules and regulations to ensure the orderly conduct of meetings.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Florida law requires covered boards, commissions, and other multi-member public bodies to give "reasonable notice" of their meetings to the public and the press. The law does not set out a specific time in advance before which a public body must give notice. Any amount of time will do if it is reasonable under the circumstances. The notice generally should include the time and place of the meeting and an agenda of the items to be discussed. The appropriate method of giving notice depends on the circumstances. In some instances, posting notice on a website or issuing a press release may be sufficient, but publication in local newspapers of general circulation may be required for matters of great public concern. You should check the websites of the Florida public bodies that you are interested in for notices and contact them to see if you can sign up for a mailing list or other targeted mechanism for delivering notice.

      Minutes and Recordings

      The Florida Sunshine Act requires public collegial bodies to record minutes of their meetings and to make them available to the public for inspection and copying. They may, but need not, make audio recordings of their meetings. If a public body chooses to do so, however, the sound recording is a public record that you can access just like ordinary minutes.

      For information on your ability to use recording devices at public meetings, see Florida Recording Law.

      An Exception: Closed Meetings or Sessions

      Under Florida law, a public body may hold a closed meeting or session when it is dealing with certain subject areas, for which the State Legislature has provided exemptions to the open-meetings requirements. Some exceptions include meetings with a public body's attorney over pending litigation, strategy discussions between a government body and its chief executive officer prior to collective bargaining negotiations, certain hearings involving minors, and meetings involving probable cause determinations or considering confidential records. Unfortunately, the state legislature has passed over two-hundred exemptions and they are not located in one specific statutory provision. For more information on these exemptions, see the Citizen's Guide to Government in the Sunshine and the Government-in-the-Sunshine Manual.

      What Are Your Remedies If You Are Denied Access?

      If you know in advance that a meeting will be closed, and you believe that closure would violate the Florida Sunshine Law or Florida Constitution, you should make a written demand for access on the chairperson of the public body or its attorney. The demand should remind the public body of its obligations under the open meetings laws and ask it to identify the statutory exception it is relying on to close the meeting. If the public body refuses your demand for access, you can sue in state circuit court. If you are successful, a court may order the public body to make the meeting in question open to the public.

      You may also sue to have a court invalidate past actions of public bodies taken in violation of the open meetings laws. The State Attorney's Office in the relevant judicial circuit can provide you some assistance if you choose to pursue litigation, although it will not handle your case. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation. If you win in a lawsuit against a public body for violation of the Sunshine Law, you can recover your attorneys' fees. On the other hand, if a court finds that your lawsuit is frivolous (i.e., has absolutely no legal merit) or was filed in bad faith, then it may force you to pay the attorneys' fees of the public body. This would not happen unless your legal claim were utterly and obviously without any merit.

      If you show up at a meeting and the public body tries to exclude you from it, you do not have time to get a court order. On page twelve of its Citizen's Guide to Government in the Sunshine, the Brechner Center provides a useful script that may keep you from being excluded:

      Florida Statute 286.011, the Government-in-the-Sunshine Law, requires that all meetings of state or local governmental boards or commissions be open to the public unless there is a specific statutory exemption. If I am ordered to leave (or forbidden to enter) this meeting, I ask that you advise me of the statutory authority for your action. Otherwise, I must insist on my right to attend this meeting.

      If the public body in question still insists on excluding you, you have no choice but to leave in an orderly fashion. You may then consider filing a lawsuit.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Georgia

      Note: This page covers information specific to Georgia. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Georgia Open Meetings Act provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Georgia. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Georgia open meetings law, please consult the Georgia Attorney General's Sunshine Law Citizen's Guide to Open Government and the Reporters Committee for Freedom of the Press's Open Government Guide: Georgia.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Georgia Open Meetings Act covers the meetings of "the governing body of an agency" and committees created by its members. The term “agency” includes the following:

      • Every state department, agency, board, bureau, commission, public corporation, and authority;
      • Every county, municipal corporation, school district and other political subdivision;
      • Every department, agency, board, bureau, commission, authority and similar body of each county, municipal corporation or other political subdivision of the state;
      • Every city, county, regional or other authority established pursuant to state law; and;
      • Non-profit organizations that receive more than one-third of their funds from a direct allocation of state funds from the governing authority of an agency.

      Some examples of "governing bodies of agencies" covered by the Open Meetings Act include state boards and commissions (such as the State Board of Medical Examiners and the Soil and Water Conservation Commission), county commissions, regional development authorities, school boards, library boards, hospital authorities, planning commissions, zoning boards, boards of trustees of public universities, and non-profit corporations operating public hospitals. For additional details on government bodies covered by the Open Meetings Act, see the Open Government Guide: Georgia.

      The Georgia Open Meetings Act does not apply to federal government bodies.

      What is a Meeting?

      In addition to determining what government bodies are covered by Georgia law, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under the Georgia Open Meetings Act, a "meeting" is any gathering of a quorum of members of a governing body of an agency (defined above) to discuss or take action regarding official business or policy. The term also applies to information-gathering and fact-finding sessions called by these bodies where a quorum of members are present and the session relates to the body's public business.

      Governing bodies may hold meetings by by written, telephonic, electronic, wireless, or other virtual means. However, these electronic meetings must be open to the public and are subject to the notice requirements outlined below. While the law is not certain on this point, it appears that email communications between members of a governing body may constitute a "meeting."

      What Are Your Rights?

      Attending Meetings

      The Georgia Open Meetings Act give "the public" the right to attend the meetings of governing bodies of agencies, with exceptions for closed meetings discussed below. Georgia law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      It is unclear whether your right to attend public meetings includes the right to participate or comment. As a matter of practice, however, some state and local agencies give the public an opportunity to speak at meetings.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Georgia law requires governing bodies of agencies to establish a set schedule of regular meetings and to post notice of this schedule at a conspicuous location at its regular meeting place. The posted notice for regularly scheduled meetings must include dates, times, and locations for the meetings. See Ga. Code § 50-14-1(d). Governing bodies are required to post agendas for regularly scheduled meetings as far in advance as possible, but not more than two weeks beforehand. See Ga. Code § 50-14-1(e).

      Governing bodies of agencies may also hold meetings besides those regularly scheduled, but they must provide notice to the public at least twenty-four hours beforehand. A governing body must post this notice at the place of its regular meetings, and it must give written or oral notice to the local newspaper where notices of sheriff's sales are published or another newspaper with greater circulation in the area. See Ga. Code § 50-14-1(d).

      Minutes and Recordings

      The Georgia Open Meetings Act requires governing bodies to record minutes of their meetings and to make them available to the public for inspection. The minutes must contain, at a minimum, the names of the members present at the meeting, a description of each motion or other proposal made, and a record of all votes.

      For information on your ability to use recording devices at public meetings, see Georgia Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of governing bodies of agencies must be open to the public. A governing body may exclude the public from a portion of a meeting known as a "closed session" if it identifies a specific statutory exemption. Under Georgia Open Meetings Act, a governing body may hold a closed session when it is dealing with one of nine subject-area exemptions found in Ga. Code § 50-14-3. The nine exemptions are:

      • staff meetings held for investigative purposes under duties or responsibilities imposed by law;
      • deliberations and voting of the State Board of Pardons and Paroles;
      • meetings of the Georgia Bureau of Investigation or any other law enforcement agency in the state, including grand jury meetings;
      • meetings when any agency is discussing the future acquisition of real estate;
      • meetings of the governing authority of a public hospital or any committee thereof when discussing the granting, restriction, or revocation of staff privileges or the granting of abortions under state or federal law;
      • meetings when discussing or deliberating upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee;
      • adoptions and proceedings related thereto;
      • meetings of the board of trustees or the investment committee of any public retirement system when such board or committee is discussing matters pertaining to investment securities trading or investment portfolio positions and composition; and
      • meetings when discussing any records that are exempt from public inspection or disclosure pursuant to paragraph (15) of subsection (a) of Code Section 50-18-72, when discussing any information a record of which would be exempt from public inspection or disclosure under said paragraph, or when reviewing or discussing any security plan under consideration pursuant to paragraph (10) of subsection (a) of Code Section 15-16-10.

      If a governing body is dealing with one of these exemptions, then it must also vote to close the meeting by a majority of members present and record the reason for the closure in the minutes. A governing body must keep separate minutes for closed sessions. These minutes are not made available to the public, except those portions reflecting the vote and purpose for closure. The chairperson or presiding official must also execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or closed session was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. Ga. Code § 50-14-4.

      For more information on the exceptions to the open meetings requirement, see the Open Meetings section of the Attorney General's Sunshine Law Handbook and the Open Government Guide: Georgia.

      What Are Your Remedies If You Are Denied Access?

      If you know in advance that a meeting will be closed, and you believe that closure would violate the Georgia Open Meetings Act, you should make a written demand for access on the chairperson of the governing body or its attorney. The demand should remind the governing body of its obligations under the Open Meetings Act and ask it to identify the statutory exception it is relying on to close the meeting. If the governing body refuses your demand for access, you can sue in Georgia Superior Court. If you are successful, a court may order the governing body to make the meeting in question open to the public.

      You may also sue to have a court invalidate past actions of governing bodies taken in violation of the Open Meetings Act (but only if you file suit within ninety days of the violation) or order the disclosure of minutes from an improperly closed meeting. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation. If you win in a lawsuit against a governing body for violation of the Open Meetings Act, a court may force the losing party to pay your attorneys' fees if it determines that the violation was "without substantial justification."

      The state may also pursue criminal penalties against members of a governing body who violate the Open Meetings Act.

      If you show up at a meeting and the governing body tries to exclude you from it, you do not have time to get a court order. You should remind the presiding officer (or whoever is denying you access) that Georgia Code § 50-14-1 requires that the meetings of the governing bodies of state or local agencies be open to the public unless there is a specific statutory exemption. You should insist on your right to attend unless the presiding officer can identify for you the statutory authority for closing the meeting. If the governing body still insists on excluding you, you have no choice but to leave in an orderly fashion. You may then consider filing a lawsuit.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Illinois

      Note: This page covers information specific to Illinois. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Illinois Open Meetings Act provides the public with a right of access to the meetings of a large number of government bodies at the state and local level. The law also entitles you to notice of these meetings and gives you the ability to inspect meeting minutes. For more detailed information about Illinois open meetings law, please consult the Illinois Attorney General's Guide to the Illinois Open Meetings Act and the Reporters Committee for Freedom of the Press's Open Government Guide: Illinois.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Illinois Open Meetings Act covers all "public bodies." The term "public body" includes

      all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, except the General Assembly and committees or commissions thereof.

      5 Ill. Comp. Stat. 120/1.02. This definition is broad, bringing in nearly all publicly-created state and local decison-making bodies. "Public body" applies to state agencies in the executive branch of state government, political subdivisions (including all their constituent boards and commissions), and municipal authorities (such as city councils). The term applies to school boards and the boards of public colleges and universities. In addition, it applies to committees and subcommittees created by "public bodies" that are supported by or expend tax revenue, or that are authorized to act for the public body or give it advice or recommendations.

      The Illinois Open Meetings Act does not apply to the Illinois Senate or House of Representatives or to legislative committees or commissions. However, the Illinois Constitution requires that sessions of each house of the General Assembly and meetings of committees, joint committees, and legislative commissions be open to the public unless members vote to close by a two-thirds majority. The Illinois Open Meetings Act does not apply to the federal government bodies.

      What is a Meeting?

      In addition to determining what government bodies are covered by the open meetings law, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under the Illinois Open Meetings Law, a "meeting" is

      any gathering, whether in person or by video or audio conference, telephone call, electronic means (such as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the members of a public body held for the purpose of discussing public business or, for a 5‑member public body, a quorum of the members of a public body held for the purpose of discussing public business.

      5 Ill. Comp. Stat. 120/1.02. There are three key elements to the definition of meeting: (1) a gathering; (2) a majority of a quorum; and (3) a purpose to discuss public business.

      First, a "gathering" can be conducted in-person, through a telephone conference call or video conference, or through electronic means, including email, chat, and instant messaging. Illinois is one of the first states to explicitly define a meeting to include electronic communications like email and chat. Despite this new definition, the most practical use of the Open Meetings Act for you will probably still be attending ordinary, in-person meetings.

      Second, a "majority of a quorum" must be present to have a "meeting." This sounds complicated, but a "quorum" just means the number of members of a body or committee required to take formal action, which is always a majority of the entire membership of that body or committee. So, for a nine-member body, a quorum is five members, and a majority of those five members is three members. Therefore, a nine-member body can have a "meeting" when three or more members are present. For an eleven-member body, a quorum is six members, and a majority of a quorum is 4 members. Thus, an eleven-member body can have a "meeting" when 4 or more members are present. You can do the analysis for any size public body. There is one exception to this rule: for a five-member body, the full quorum of three or more members is required for a "meeting."

      Third, a gathering must be held "the purpose of discussing public business" in order to be a "meeting." The "purpose" requirement means that social and ceremonial gatherings held for purposes unrelated to conducting public business generally are not covered by the Open Meetings Act. However, a social gathering may become a "meeting" if the requisite number of members start to discuss public business in a meaningful away. According to the Attorney General, the phrase "discussing public business" refers to "an exchange of views and ideas among public body members, on any item germane to the affairs of their public body." "It is not directed at casual remarks, but . . . at discussions that are deliberative in nature."

      What Are Your Rights?

      Attending Meetings

      The Illinois Open Meetings Act give "the public" the right to attend the meetings of public bodies or their committees, with exceptions for closed meetings discussed below. Illinois law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      The Open Meetings Act does not create a right to comment or participate in public meetings. As a matter of practice, however, many public bodies allow for public comment, but require that an "intent to comment" form be filed with the secretary of the body.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Illinois law requires public bodies and their committees to give notice to the public of its meetings. At the beginning of each calendar or fiscal year, each body must give the public notice of the schedule of regular meetings for the year, including the dates, times, and places of the meetings. A public body must also post an agenda for each regular meeting at its principal office and at the location where the meeting is to be held at least forty-eight hours in advance. A public body with a regularly maintained website must also post the agenda of regular meetings on the site.

      A public body may also hold "special meetings," which are meetings not on the regular schedule. In that event, the public body must post notice at least forty-eight hours in advance. This notice must include the agenda for the special meeting. If an emergency meeting is called for, a public body must give notice "as soon as practicable, but in any event prior to the holding of such meeting," to any news medium which has filed an annual request for notice. It is unclear whether a non-traditional journalist or other online publisher would qualify as a "news medium," but you may want to request notice in any event.

      Minutes and Recordings

      All public bodies and their committees must keep written minutes of open meetings and make them available to the public for inspection. If a public body has a website, it must post the minutes on the website as well. In addition, public bodies and their committees are required to keep a verbatim record of all their closed meetings in the form of an audio or video recording, but they generally do not have to make these available to the public.

      For information on your ability to use recording devices at public meetings, see Illinois Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies and their committees must be open to the public, but a public body may hold a closed meeting or session if it identifies a specific statutory exemption. Under the Illinois Open Meetings Act, a public body may hold a closed meeting or session when it addresses one of twenty-four subject-area exemptions found in 5 Ill. Comp. Stat. 120/2(c), or when another state statute specifically authorizes closure. If a public body is dealing with one of these exemptions, it may hold a closed meeting or session. In order to do so, however, it must also meet the following procedural requirements:

      • a majority of members must vote during an open meeting to close a meeting or portion of a meeting, and the vote of each member must be recorded in the minutes;
      • the public body must record in the minutes of an open meeting the specific statutory exception upon which it is relying to close the meeting; and
      • the public body must also make a verbatim recording of all closed meetings, but these recordings are not usually open to the public for inspection.

      For more detailed information on the exemptions to the open-meetings requirements in Illinois, see the Guide to the Illinois Open Meetings Act and the Open Government Guide: Illinois.

      What Are Your Remedies If You Are Denied Access?

      If you know in advance that a meeting will be closed, and you believe that closure would violate the Illinois Open Meetings Act, you should make a written demand for access on the presiding officer of the public body or its attorney. The demand should remind the public body of its obligations under the Open Meetings Act and ask it to identify the statutory exception it is relying on to close the meeting. If the public body refuses your demand for access, you can sue in Illinois state court. If you are successful, a court may order the public body to make the meeting in question open to the public.

      You may also sue to have a court invalidate past actions of public bodies taken in violation of the Open Meetings Act or order disclosure of the verbatim record of an improperly closed meeting. To bring a lawsuit challenging past action of a public body, however, you must file a lawsuit within sixty days of the agency action in question (or within sixty days of discovery that a violation took place). If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation. If you win in a lawsuit against a public body for violation of the Open Meetings Act, a court may force the losing party to pay your attorneys' fees. On the other hand, if you lose, a court may force you to pay the attorneys' fees of the public body if it finds that your lawsuit was "frivolous or malicious" in nature. This would not happen unless your legal claim were utterly and obviously without any merit.

      The state may also pursue criminal penalties against members of a public body who violate the Open Meetings Act.

      If you show up at a meeting and the public body tries to exclude you from it, you do not have time to get a court order. You should remind the presiding officer (or whoever is denying you access) that the Illinois Open Meetings Act (5 Ill. Comp. Stat. 120/2) requires that the meetings of state and local public bodies and their committees be open to the public unless there is a specific statutory exemption. You should insist on your right to attend unless the presiding officer can identify for you the statutory authority for closing the meeting. If the governing body still insists on excluding you, you have no choice but to leave in an orderly fashion. You may then consider filing a lawsuit.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Indiana

      Note: This page covers information specific to Indiana. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Indiana Open Door Law provides the public with a right of access to the meetings of a large number of government agencies at the state and local level. The law also entitles you to notice of these meetings and gives you the ability to inspect and copy meeting memoranda. For more detailed information about Indiana open meetings law, consult the Handbook on Indiana's Public Access Laws prepared by Indiana's Public Access Counselor and the Reporters Committee for Freedom of the Press's Open Government Guide: Indiana.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Indiana Open Door Law covers the governing bodies of public agencies. The legal definition of "governing bodies of public agencies" is exceedingly complex. See pages six and seven of the Public Access Counselor's Handbook on Indiana's Public Access Laws for a detailed explanation. At the risk of over-simplification, the Act covers multi-member boards, commissions, councils, and committees of state and local government that take action on public business. This includes the governing boards and commissions of departments and agencies in the executive branch of state government, county boards, city councils, school boards, and the boards of trustees of public colleges and universities, among other things. It also includes the Indiana General Assembly and its committees. The Open Door Law does not apply to the federal government bodies or private organizations.

      What is a Meeting?

      In addition to determining what government bodies are covered by the law, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under the Indiana Open Door Law, a "meeting" is a gathering of a majority of the members of a governing body of a public agency for the purpose of taking official action upon agency business. The word "official action means to receive information, deliberate, make recommendations, establish policy, make decisions, or take final action. There are several examples of what meetings are and what it means to take public action set forth on pages seven and eight of the Public Access Counselor's Handbook on Indiana's Public Access Laws.

      The Open Door Law lists four types of gatherings that are not considered “meetings.” A meeting does not include: (1) any social or chance gathering not intended to avoid the requirements of the Open Door law; (2) any on-site inspection of a project or program; (3) traveling to and attending meetings of organizations devoted to the betterment of government; or (4) a caucus (defined as "a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action").

      What Are Your Rights?

      Attending Meetings

      The Indiana Open Door Law gives "the public" the right to attend the meetings of governing bodies of public agencies, with exceptions for closed sessions discussed below. Indiana law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      Members of the public may "observe and record" meetings, but the statute gives the public no right to speak. As a matter of practice, however, governing bodies of public agencies often allow members of the public to speak at the end of public meetings.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Indiana law requires the governing bodies of public agencies to give the public advance notice of their meetings. Governing bodies must publish notice of their regularly scheduled meetings once a year no later than forty-eight hours prior to the first meeting. The notice must contain the dates, times and locations of all meetings. The notice must be posted at the principal office of the public agency holding the meeting or, if no such office exists, at the building where the meeting is to be held. The governing body must also deliver notice by mail, email, or fax to "all news media" that submit a written request for notice annually. It is not clear whether a non-traditional journalist or other online publisher would qualify as part of the "news media," but you may want to request notice in any event. If a governing body uses an agenda, it must post the agenda at the entrance to the meeting location prior to the meeting.

      If a governing body reschedules a meeting, changes the location of a meeting, or decides to hold a closed session (below), it must post and deliver notice as described above at least forty-eight hours in advance. Different notice requirements apply in emergency situations. See the Open Government Guide: Indiana for details.

      The Open Door Law exempts the Indiana General Assembly from its notice requirements.

      Minutes and Recordings

      Governing bodies must keep "memoranda" of meetings, which are functionally similar to minutes. The memoranda must include:

      • the date, time, and place of the meeting;
      • the members of the governing body recorded as either present or absent;
      • the general substance of all matters proposed, discussed, or decided; and
      • a record of all votes taken, by individual members if there is a roll call.

      Governing bodies must make these memoranda available to the public for inspection and copying. If a governing body chooses to record minutes (it is not required to do so), it must also make these minutes available to the public for inspection and copying.

      For information on your ability to use recording devices at public meetings, see Indiana Public Records.

      An Exception: Closed Sessions

      The general rule is that the meetings of all governing bodies of public agencies meetings must be open to the public, but a governing body may hold a closed or "executive" session if it identifies a specific statutory exemption. Under the Indiana Open Door Law, a governing body may hold an executive session when it is dealing with one of thirteen subject-area exemptions found in Ind. Code § 5-14-1.5-6.1 (scroll down). The thirteen exemptions are for meetings:

      • to discuss strategy with respect to collective bargaining, initiation of litigation, implementation of security systems, or the purchase or lease of real estate;
      • to discuss the assessment, design, and implementation of school safety and security measures, plans, and systems;
      • to carry out interviews and negotiations with industrial or commercial prospects or agents of industrial or commercial prospects (only certain governing bodies may invoke this exemption);
      • to receive information about and interview prospective employees;
      • to receive information about the alleged misconduct of certain individuals;
      • to discuss records classified as confidential by state or federal statute;
      • to discuss before a placement decision an individual student's abilities, past performance, behavior, and needs;
      • to discuss a job performance evaluation of individual employees;
      • to develop a list of prospective appointees for a public official position and to consider applications and make initial exclusions;
      • to train school board members with an outside consultant about the performance of the role of the members as public officials;
      • to prepare or score examinations used in issuing licenses, certificates, permits, or registrations;
      • to discuss information and intelligence intended to prevent, mitigate, or respond to the threat of terrorism; and
      • where federal or state law authorizes closure.

      If the governing body is dealing with one of these exemptions, then it may hold a closed session, but it is not required to do so. In order to hold a closed session, it must also meet the following procedural requirements:

      • the governing body must give public notice of the executive session at least forty-eight hours in advance, and the notice must state the time, date, and location of the session and reference the specific statutory exception justifying closure of the meeting;
      • the governing body must certify by a statement in the memoranda of the executive session that it discussed no subject matter beyond that specified in the public notice; and
      • no final action may be taken in executive session.

      For more information on the exceptions to the open meetings requirement, see the Handbook on Indiana's Public Access Laws and the Open Government Guide: Indiana.

      What Are Your Remedies If Denied Access?

      If you know in advance that a meeting will be closed, and you believe that closure would violate the Indiana Open Door Law, you should make a written demand for access on the chairperson of the governing body or its attorney. The demand should remind the governing body of its obligations under the Open Door Law and ask it to identify the statutory exception it is relying on to close the meeting. If the governing body refuses your demand for access, you should contact the the Public Access Counselor, a state position created in order to provide advice and assistance to the public about Indiana's public access laws. The Access Counselor may provide you with informal advice or make a formal determination of whether the governing body in question is violating the open meetings law, but its advice and determinations are not binding on public agencies. You may also sue the governing body in Indiana state court. If you are successful, a court may order the governing body to make the meeting in question open to the public.

      You may also sue to have a court invalidate past actions of a governing body taken in violation of the Open Door Law, but complicated time limits apply for those types of cases. See page eleven of the Handbook on Indiana's Public Access Laws for details. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation. If you win in a lawsuit against a governing body for violation of the Open Door Law, a court must award you reasonable attorneys' fees, costs, and expenses if you sought the advice of the Public Access Counselor prior to filing suit. On the other hand, if you lose, a court may force you to pay the attorneys' fees of the governing body if it finds that your lawsuit was "frivolous and vexatious" in nature. This would not happen unless your legal claim were utterly and obviously without any merit. Seeking the advice of the Public Access Counselor before filing a lawsuit would be a good way to avoid bringing a "frivolous and vexatious" case.

      If you show up at a meeting and the governing body tries to exclude you from it, you do not have time to get a court order. You should remind the presiding officer (or whoever is denying you access) that Indiana Code § 5-14-1.5-3 requires that the meetings of the governing bodies of state or local agencies be open to the public unless there is a specific statutory exemption. You should insist on your right to attend unless the presiding officer can identify for you the statutory authority for closing the meeting. If the governing body still insists on excluding you, you have no choice but to leave in an orderly fashion. You should then contact the Public Access Counselor and consider filing a lawsuit.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Massachusetts

      Note: This page covers information specific to Massachusetts. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      The Massachusetts Open Meeting Law, Mass Gen. Laws. ch. 30A, §§ 18-25, and accompanying regulations, 940 Code of Mass. Regs. 29.00, provide the public with a right of access to the meetings of a large number of public bodies at the state and local level. Massachusetts law also gives you the ability to inspect and copy meeting minutes and imposes notice requirements on public bodies. For more detailed information on the Massachusetts Open Meeting Law, see the Massachusetts Attorney General's Open Meeting Law website.

      What Meetings are Covered?

      What Public Bodies Are Covered?

      The Open Meeting Law applies to public bodies. This includes nearly all boards, commissions, committees, and other multi-member bodies that carry out a government function at the state, county, district, city, region, or town level in Massachusetts. However, the law specifically excludes the following things from the definition of "public body": (1) the judicial branch of state government; (2) the General Court (i.e., the state legislature) and its committees and subcommittees; (3) boards appointed by particular government officers soley to advise the officer; (4) the Board of Bank Incorporation; or (5) the Policyholders Protective Board. Covered groups include boards of selectmen, city councils, local school boards, and state boards and commissions like the Massachusetts Board of Elementary and Secondary Education and the State Ethics Committee. The law does not cover individual government officials such as a mayor or police chief. It also does not apply to federal public bodies or private organizations. See Mass Gen. Laws. ch. 30A, § 18.

      What is a Meeting?

      In addition to determining what public bodies are covered by Massachusetts law, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). The Open Meeting Law applies to every gathering of a quorum of a public body where attending members discuss or consider official business within the scope of their official authority. A "quorum" means a simple majority of members of the public body, unless provided otherwise for a particular public body by law or executive order. For example, if a city council has seven members, a "meeting" takes place whenever four or more council members congregate to deal with city council business.

      The Open Meeting Law does not apply to:

      (a) an on-site inspection of a project or program by members of a public body, so long as the members do not deliberate;

      (b) attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, so long as the members do not deliberate;

      (c) attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, so long as the visiting members communicate only by open participation in the meeting on those matters under discussion by the host body and do not deliberate;

      (d) a meeting of a quasi-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it; or

      (e) a session of a town meeting which would include the attendance by a quorum of a public body at any such session.

      See Mass Gen. Laws. ch. 30A, § 18.

      What Are Your Rights?

      Attending Meetings

      The Open Meeting Law states that "all meetings of a public body shall be open to the public," with exceptions for closed sessions discussed below. Massachusetts law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend, including non-residents and non-voters.

      The Open Meeting Law does not give the public a right to participate or comment during open meetings. As a matter of practice, however, public bodies often allow members of the public to comment during public meetings. No one may address a public meeting of a public body without permission of the presiding officer, and all persons must be silent upon request of the presiding officer. See Mass Gen. Laws. ch. 30A, § 20.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Massachusetts law requires public bodies to give notice to the public of its meetings. A public body must provide notice at least forty-eight hours in advance (excluding Saturdays, Sundays and holidays). The notice must contain the date, time, and place of the meeting. See Mass Gen. Laws. ch. 30A, § 20.

      Notice of a meeting must be filed and posted in specific ways depending on whether the meeting is taking place at the local, regional, district, county, or state level. Specific methods of notice for each level of government are described in the Attorney General's regulations; see 940 Code of Mass. Regs. 29.03.

      Minutes and Recordings

      Public bodies must must record and maintain accurate minutes of their meetings, setting forth at a minimum the date, time, place, members present or absent, and action taken at each meeting. Public bodies must create and approve minutes in a timely fashion, and must make these minutes available to the public for inspection and copying within 10 days of a request by any person.

      The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, are public records subject to the Massachusetts Public Records Law, except for (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation; and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials; provided, however, that any resume submitted by an applicant shall not be exempt.

      An exception to the public right to access meeting minutes and related materials exist for closed meetings and sessions, as discussed below.

      See Mass Gen. Laws. ch. 30A, § 22. For information on your ability to use recording devices at public meetings, see Massachusetts Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed session, called an "executive session," it must identity a specific statutory exception. Under the Massachusetts Open Meeting Law, a public body may hold an executive session when it is dealing with one of ten subject-area exemptions found in Mass Gen. Laws. ch. 30A, § 21. The ten exemptions are:

      1. To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual;
      2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;
      3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares;
      4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;
      5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;
      6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;
      7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;
      8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants;
      9. To meet or confer with a mediator with respect to any litigation or decision on any public business within its jurisdiction;
      10. To discuss trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier or as a municipal aggregator, or in the course of activities conducted by a cooperative consisting of governmental entities, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy.

      There are additional limitations on many of these exemptions, so if you believe that you have been excluded from a meeting regarding subject matter that might fall within one of the exemptions above, be sure to read the statute carefully.

      Note also that these exemptions make it permissible for a public body to close a meeting, but they do not require the public body to do so. Assuming that a public body is dealing with one of these enumerated exceptions, then it may hold an executive session, but it must also meet the following procedural requirements:

      • the public body must first convene in an open meeting for which notice was given;
      • at this open meeting, the public body must vote by a majority of members present to go into executive session;
      • prior to the vote, the presiding officer must state for the record the statutory exemption relied on to close the meeting;
      • before going into executive session, the presiding officer must state whether the body will reconvene after the executive session; and
      • accurate records of the executive session must be maintained, but the public body may keep these minutes confidential "as long as publication may defeat the lawful purposes of the executive session, but no longer." Mass Gen. Laws. ch. 30A, § 22.

      What Are Your Remedies If You Are Denied Access?

      If you believe that a public body is violating or has violated your right of access under the Open Meeting Law, you have two options under the law. See Mass Gen. Laws. ch. 30A, § 23.

      Requesting help from the Attorney General:

      First, you may ask the Attorney General for the Commonwealth of Massachusetts to investigate and take action on violations of the Open Meetings Law. There is a specific procedure that you must follow to pursue this option:

      • You must first file a complaint with the public body that you believe violated the law within 30 days of the alleged violation. This complaint must identify the circumstances that violated the law and provide an opportunity to remedy the violation.
      • The public body, within 14 days of receipt of your complaint, is required to forward the complaint to the Attorney General's office with notification of any remedial action taken in response to the complaint.
      • If the public body fails to respond or if you are dissatisfied with the remedial action the public body takes, you can forward your complaint to the Attorney General's office, but no sooner than 30 days after you filed your initial complaint with the public body. However, you should not wait too long to file with the Attorney General's office, because the Attorney General may decline to investigate complaints filed more than 90 days after the alleged violation.

      The Attorney General attempts to resolve complaints within a reasonable period of time, generally 90 days. After reviewing your complaint, the Attorney General will determine whether there is reasonable cause to believe that the Open Meeting Law has been violated, and if so, whether to conduct a formal investigation. The Attorney General may request additional information from you about the alleged violation.

      At the conclusion of its investigation, the Attorney General's office will make findings, and where a violation has occurred, may order remedial action. If the Open Meeting Law has been violated unintentionally, then the Attorney General will resolve the investigation by informal action or by formal ruling for more significant violations. The Attorney General may order remedial action by the public body directing immediate and future compliance with the law, attendance at a training session, release of records, or other appropriate action. If the Attorney General's office seeks to reinstate an employee or nullify the action of a public body as a remedy for the violation, it will ordinarily convene a hearing to take testimony from witnesses to determine the appropriate remedy. If the Attorney General's office has reasonable cause to believe that the Open Meeting Law has been violated intentionally, it may convene a hearing to determine whether the violation was intentional, whether the public body, one or more of its members, or both, were responsible, and whether to impose on the public body a civil penalty of up to $1,000 for each violation.

      Filing a lawsuit:

      Instead of going through the Attorney General, you can file a lawsuit directly against the public body in state court, but you may do so only if you can organize three or more registered voters to act as plaintiffs. A lawsuit against a public body at the state level must be filed in Suffolk County Superior Court.  Lawsuits against other public bodies must be filed in the superior court for the county in which the public body acts or meets.

      Special provisions encourage the speedy determination of lawsuits over open meetings violations. In any such lawsuit, the burden is on the public body to prove that their conduct was in accordance with the Open Meetings Law, except that for a court to issue a civil penalty directed at an individual, you must provide proof that the action of the public body violated the law. A public body may also avoid liability by proving that it acted in good faith compliance with the advice of its attorney in taking the challenged action. If you sue and win, you can obtain the remedies mentioned above, including an order barring future violations, disclosure of meeting minutes from improperly closed meetings, invalidation of past actions, and/or a civil penalty of not more than $1,000 per intentional violation of the law.

      If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

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      Open Meetings Laws in Michigan

      Note: This page covers information specific to Michigan. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Michigan Open Meetings Act provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Michigan. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about the Michigan Open Meetings Act, consult the Michigan Legislature's helpful guide, The Michigan Open Meetings Act and Freedom of Information Act and the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Michigan Open Meetings Act covers the meetings of public bodies. The law defines a "public body" as:

      any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; or the board of a nonprofit corporation formed by a city under [Michigan law].

      Mich. Comp. Laws § 15.262(a). This broad definition includes state boards and commissions within the executive branch of state government and the state legislature and its committees. On the local level, it includes the governing bodies of all cities, villages, townships, charter townships, and county government. It also covers local school districts, boards of trustees of public colleges and universities, and special boards and commissions created by law, such as public hospital authorities, road commissions, health boards, and zoning boards. The unifying requirement is that the public body must exercise governmental authority or perform a governmental function. For this reason, it is not clear whether advisory committees that do not take final action on public business are covered by the Open Meetings Act. The Act does not apply to federal government bodies or to the judiciary.

      Mich. Comp. Laws § 15.263(7) exempts certain public bodies when they are deliberating on the merits of a case:

      • the Worker's Compensation Appeal Board;
      • the Employment Security Board of Review;
      • the State Tenure Commission
      • the Michigan Public Service Commission; and
      • an arbitrator or arbitration panel appointed by the Employment Relations Committee or selected under Michigan law.

      Consult the Open Government Guide: Michigan for additional information on what public bodies are covered.

      What is a Meeting?

      In addition to determining what government bodies are covered by Michigan law, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). Under the Michigan Open Meetings Act, a "meeting" is any gathering of a quorum of members of a governmental body to discuss or take action regarding official business or policy. A quorum is a just a simple majority of the members of the public body. The term "meeting" also applies to information-gathering and fact-finding sessions called by the governmental body where a quorum of members are present and the session relates to the body's public business. The Open Meetings Act excludes a gathering that is "a social or chance gathering or conference not designed to avoid this act." Mich. Comp. Laws § 15.263(10).

      Governmental bodies may hold meetings by by written, telephonic, electronic, wireless, or other virtual means. However, an electronic meeting is still subject to the notice requirements and must be held at a designated place and time. While the law is not certain on this point, it appears that email communications between members of a governmental body may constitute a meeting if they involve deliberation on public business.

      What Are Your Rights?

      Attending Meetings

      The Michigan Open Meetings Act gives "the public" the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. Michigan law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. A public body may not put conditions on attendance, such as requiring you to give your name or other information. See Mich. Comp. Laws § 15.263(2)-(4).

      The Open Meetings Act gives you the right to speak or comment during a meeting of a public body, subject to rules established by the public body for the maintenance of order. A public body may not exclude you from an open meeting except for breach of the peace committed at the meeting. The state legislature may set rules that limit the right of comment to prescribed times at hearings and committee meetings only. See Mich. Comp. Laws § 15.263(5),(6).

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Michigan law requires public bodies to give notice of their meetings. The Open Meetings Act requires public bodies to publish notice of their regularly scheduled meetings within ten days of the first meeting in each calendar or fiscal year. The notice must contain the dates, times, and places of the public body's regular meetings, as well as the name of the public body, its telephone number if one exists, and its address. The public body must post this notice at its principal office and any other location deemed appropriate. Publishing notice through cable television is permitted. If a public body does not have a principal office, the notice should be posted in the office of the county clerk for a local public body or the office of the Secretary of State for a state public body. If the public body amends its schedule, it must post notice of the change within three days. See Mich. Comp. Laws § 15.264; Mich. Comp. Laws § 15.265(1)-(3)

      Public bodies may also hold "special" meetings, which are meetings not on the regular schedule. For these meetings, they must post notice at least 18 hours before the meeting. This requirement does not apply to the special meetings of subcommittees of a public body or conference committees of the state legislature. Mich. Comp. Laws § 15.265(4).

      You can request that a public body notify you by mail in advance of all noticed meetings. The public body may charge you a reasonable fee for the cost of printing and mailing. Newspapers published in the state and radio and television stations located in the state may request notice by mail for no charge. It is not clear whether non-traditional journalists and online publishers could take advantage of this no-fee notice provision. You should renew your request for notice by mail yearly in order to ensure that you continue to receive notices. See Mich. Comp. Laws § 15.266.

      Minutes and Recordings

      The Michigan Open Meetings Act requires public bodies to record minutes of their meetings and to make them available to the public for inspection and copying for a reasonable fee. See Mich. Comp. Laws § 15.269. Public bodies must keep separate meetings for closed sessions (below), and these minutes are not open to the public, unless a court orders them to be made publicly available. See Mich. Comp. Laws § 15.267.

      For information on your ability to use recording devices at public meetings, see Michigan Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed session, it must identify a specific statutory exemption. Under the Michigan Open Meetings Act, a public body may hold a closed session when it is dealing with one of ten subject-area exemptions found in Mich. Comp. Laws § 15.268. The ten exemptions are for meetings:

      • to consider the dismissal, suspension, or disciplining of, or to hear complaints or charges brought against, or to consider a periodic personnel evaluation of, a public officer, employee, staff member, or individual agent, if the named person requests a closed hearing;
      • to consider the dismissal, suspension, or disciplining of a student if the public body is part of the school district, intermediate school district, or institution of higher education that the student is attending, and if the student or the student's parent or guardian requests a closed hearing;
      • to engage in strategy and negotiation sessions connected with the negotiation of a collective bargaining agreement if either negotiating party requests a closed hearing;
      • to consider the purchase or lease of real property;
      • to consult with the public body's attorney regarding litigation;
      • to review and consider the contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential;
      • to hold partisan caucuses of members of the state legislature;
      • to consider material exempt from discussion or disclosure by state or federal statute;
      • to hold a "compliance conference" conducted by the Department of Commerce pursuant to state law; and
      • to review the specific contents of an application, to conduct an interview with a candidate, or to discuss the specific qualifications of a candidate in the process of selecting a president of an institution of higher education, but only under certain circumstances.

      The exemptions make it permissible for a public body to close a meeting, they do not require the public body to do so. To close a session, a public body must identify the exemption justifying closure and vote to close the session by a two-thirds majority on the record during an open meeting. See Mich. Comp. Laws § 15.267.

      For more information on the exceptions to the Michigan open-meetings requirement, see the The Michigan Open Meetings Act and Freedom of Information Act Guide and the Open Government Guide: Michigan.

      What Are Your Remedies If You Are Denied Access?

      If you know in advance that a meeting will be closed, and you believe that closure would violate the Michigan Open Meetings Act, you should make a written demand for access on the chairperson of the public body or its attorney. The demand should remind the public body of its obligations under the Open Meetings Act and ask it to identify the statutory exemption it is relying on to close the meeting. If the public body refuses your demand for access, you can sue in a Michigan circuit court. If you are successful, a court may order the public body to make the meeting in question (and other future meetings) open to the public. If you win such a lawsuit, the court must award you attorneys' fees and costs for the action.

      You may also sue to have a court invalidate past actions of public bodies taken in violation of the Open Meetings Act, but only if you file suit within 60 days after the approved minutes for the meeting in question became available. You can also sue to obtain disclosure of the minutes of an improperly closed session and to get civil damages from members of the public body, but no sixty-day time limit applies to those kinds of cases. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      The state may pursue criminal penalties against members of a public body who violate the Open Meetings Act.

      If you show up at a meeting and the public body tries to exclude you from it, you do not have time to get a court order. You should remind the presiding officer (or whoever is denying you access) that section 15.263 of the Michigan Compiled Laws requires that the meetings of public bodies be open to the public unless there is a specific statutory exemption. You should insist on your right to attend unless the presiding officer can identify for you the statutory authority for closing the meeting. If the public body still insists on excluding you, you have no choice but to leave in an orderly fashion. You may then consider filing a lawsuit.

       

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      Subject Area: 

      Open Meetings Laws in Missouri

      Note: This page covers information specific to Missouri. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      Missouri combines its public records and public meetings laws into one statute.  It defines the bodies subject to the public meetings law very broadly and has no limitations on who can request records. You do not have to state a purpose to attend meetings.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      Any "public governmental body"  is subject to the public meetings law. A public governmental body is defined under Mo. Rev. Stat. § 610.010.4(4) as any "legislative, administrative or governmental entity" that includes any agency, council, committee, any governing body of any public institution of higher education, departments or divisions of the state, any quasi-public body (meaning any person or business whose primary purpose is to contract with public bodies or perform a public function, such as tax abatement) and legislative/administrative bodies with the power to make rules or hear and decide cases.

      What is a Meeting?

      A public meeting, defined in Mo. Rev. Stat. § 610.010.5(5), includes any meeting where "public business is discussed, decided, or public policy formulated" and can be conducted either in person or by teleconferencing, Internet chat or message board. Anytime a majority of the members of the public body take a public vote, whether by electronic communication or otherwise, the vote is subject to the public meetings law.

      The term does not include any informal gathering of members of the public body for ministerial or social purposes. The statute doesn't define an "informal gathering," but in Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 939 (Mo. Ct. App. 1993) the Missouri Court of Appeals held that any gathering with friends and associates that was not regularly prescribed or official would be an "informal gathering" and not subject to the public meetings law. 

      A quorum is needed for a public meeting. Statutes that create individual public bodies will define what constitutes a quorum for that body. The state constitution requires a majority of elected members of each house to constitute a quorum.

      While a gathering of less than a quorum is not a meeting, a gathering may still violate the statute if the group in question is deliberately meeting in groups of less than a quorum to discuss public business with the intent of avoiding holding public meetings.

      What Are Your Rights?

      Attending Meetings

      You have a right to record a meeting by audiotape, videotape or other electronic means. However, if you try to record a closed meeting without permission, you may be guilty of a misdemeanor.

      Notice

      Under Mo. Rev. Stat. § 610.020, all public bodies must give notice of the time, date and place and agenda of a meeting in a way "reasonably calculated" to notify the public, and they must do no later than 24 hours before the meeting. If conducted electronically or by telephone, the mode for the meeting must be included along with a location where the public may observe.

      "Reasonable notice" includes making copies available for any news media who request it and also posting it on a bulletin board at the public body's principal office, or if there is no principal office, then at the building where the meeting will be held.

      The public body must hold meetings in a location accessible to the public and large enough to accommodate the expected crowd.

      Minutes, Recordings, and Documents

      The public body must keep a journal or minutes of the meeting which must include the date, time, place, members present and absent, and any votes taken. You can request these minutes through Missouri open records law.

      An Exception: Closed Meetings or Sessions

      A majority of a quorum of the public body may vote to close the meeting. The body must announce the reason for closing. The body is also required to give notice of the closed meeting, and can only close the portions of the meeting that concern the matters justifying closure.

      Under Mo. Rev. Stat. § 610.021, you don't have a right to attend meetings where the following are being discussed: 

      • Any legal action where an attorney is discussing confidential or privileged communications with the public body, with the exception that any minutes, vote or settlement agreement relating to the action will be public
      • Any meetings where the body discuss hiring, firing, disciplining or promoting employees, with the exception that the final vote will be public
      • Nonjudicial mental/physical health proceedings
      • Welfare cases
      • Meetings that prepare for negotiations with employee groups
      • Meetings relating to scientific or technological innovations

      What Are Your Remedies If You Are Denied Access?

      You can sue the public body for improperly holding closed meetings under Mo. Rev. Stat. § 610.027. If you can prove that a record was supposed to be public and you were denied access, then the public body must show that it was complying with the law or else you win your case. The court must void any action that the public body took in violation of the law if it finds that the public interest in enforcing the law outweighs the interest in sustaining whatever action the public body took.

      If you can also show that the public body knowingly violated the public meetings law, the court must award you damages, up to $1,000. In calculating your award, the court must consider the size of the jurisdiction, the seriousness of the offense, and whether the body has previously violated the law. The court may give you costs and attorney fees. The statute doesn't define a "knowing" violation, but in Wright v. City of Salisbury, No. 2:07CV00056 AGF, 2010 WL2947709 (E.D.Mo. 2010), the federal district court in the Eastern District of Missouri, applying state law, held that a "knowing" violation referred to evidence that the public body knew that they were violating the public meetings law.

      If you can show that the body purposely violated the law, the court must give you damages, up to $5,000 as well as costs and attorney fees. In calculating your award, the court must consider the size of the jurisdiction, the seriousness of the offense, and whether the body has previously violated the law. Again, the statute doesn't define "purposely", but  in  Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. Ct. App. 1998), the Missouri Court of Appeals held that a purposeful violation is one that shows a conscious plan to violate the law.

      The courts also have the power to enforce public meetings provisions through injunctions under Mo. Rev. Stat. § 610.030.

      If you sue a public body for a closed meeting violation, make sure you do within one year pursuant to Mo. Rev. Stat. § 610.027.5(5).

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Nevada

      Note: This page covers information specific to Nevada. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      In 2011, the Nevada Legislature significantly changed the open meeting law, including expanding the law to apply to quasi judicial bodies; requiring that public bodies that have violated an opening meeting law publicize the opinion in its next agenda; enacting investigative subpoena authority; expanding the scope of the definition of "public body"; creating mandatory agenda notice requirements; removing the notice requirements for an applicant for employment; and enacting a monetary penalty of up to $500.00 against members of the public body who violate the open meeting law.

      The material below contains a broad overview of the Nevada Open Meetings Law. The Nevada Attorney General has also provided a Nevada Open Meeting Law Manual.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      When determining whether the Open Meeting Law applies, the entity's manner of creation is taken into account. The Open Meeting Law applies to all "public bodies." Public bodies include an entity of more than two people that was created by the Nevada constitution, Nevada statute, city charter or ordinance, the Nevada Administrative Code, a resolution or formal designation by a public body, an executive order issued by the governor, or a resolution or an action by the governing body of a political subdivision of this state. Nev. R. Stat. 241.015(3). The definition also includes educational foundations defined in Nev. R. Stat. 388.750(3) and university foundations defined in Nev. R. Stat. 396.405(3). Also included are any board, commission, or committees consisting of at least two people who have been appointed by the governor or an officer acting on behalf of the governor, an entity in the executive department of the state government or an officer acting on behalf of the department. The Nevada Legislature is not included.

      Exceptions to the Open Meeting Law include instances when the entity is considering the character, alleged misconduct, professional competence, or physical and mental health of a person; is preparing, revising, administering or grading examinations conducted by or on behalf of the public body; or is considering an appeal of the results of an examination conducted on behalf of a public body. The exception for considering a person's character, misconduct and competence does not apply to those who are elected members of a public body or an appointed public officer who serves "at the pleasure of a public body as a chief executive or administrative officer." Nev. R. Stat. 241.031.

      If a government body or agency establishes a civic organization, it may be considered a public body if it is intended to perform any administrative, advisory, executive or legislative function of a state or local government and it expends or disburses or is supported, in whole or in part, by tax revenue. A private, non-profit organization is a public body if it acts in an administrative, advisory, or executive capacity and is supported, at least in part, by tax revenue. Quasi-judicial bodies may also be subject to the open meeting law the proceedings have a judicial character and are performed by administrative agencies. Stockmeier v. Nev. Dep't of Corr. Psychological Review Panel, 122 Nev. 385, 390, 135 P.3d 220 (2006). Judicial character includes proceedings that are referred to as a trial, takes and weighs evidence, and makes findings of fact and law from which a party may appeal to a higher authority. Id. However, the Parole Board of Commissioners is exempt from the Open Meeting Law, despite being a quasi-judicial body.

      What is a Meeting? 

      A meeting is defined as a gathering of members of a public body where a quorum (simple majority) is present, or a series of gatherings of members of a public body that meet three criteria: (1) individual gatherings where less than a quorum is present; (2) the members of the public body attending one or more of the gatherings collectively constitute a quorum; and (3) the series of gatherings was held specifically to avoid the provisions of the Open Meeting Law. Nev. R. Stat. 241.015. Social functions where members of a public body do not deliberate toward a decision or take action in any matter that the public body oversees or meetings where an attorney is meeting with the body to discuss potential or existing litigation are exempt. Nev. R. Stat. 241.015(2)(b). The Nevada Attorney General has stated that if a majority of members of a public body meet informally, to discuss any matter over which the body has control, that gathering must comply with the open meeting law.

      These meetings may be held telephonically or by video conference. However, these meetings must still comply with the notice requirements, and the public must be able to listen in on these meetings. Electronic communications must not be used in order to circumvent the requirements of the open meeting law.

      What Are Your Rights?

      Notice

      Notice of all meetings must be posted in at least four places within the public body's jurisdiction and mailed at least three working days before the meeting is set to take place. The notice must be placed at the principal office of the public body, or, if that does not exist, in the building where the meeting will take place. The notice must also be placed in three separate "prominent" places. Nev. R. Stat. 241.020. If the public entity maintains a website, the public entity must also post the agenda to it, although the body is not required to create a website if it does not already have one.

      If someone has requested that he or she be mailed a notice of the meetings, the public entity must comply, and the mail must be postmarked before 9 a.m. on the third working day before the meeting. This request must be renewed every six months, and the recipient must be notified of that fact upon the first mailing. Additionally, if a person's character, misconduct, competence, or physical and mental health will be discussed, that person must also be notified of the meeting.

      Nev. R. Stat. 241.020 sets forth notifications that must be provided on every agenda. These mandatory requirements include that the phrase "for possible action" must be placed next to the appropriate agenda item, and that the agenda clearly state that items may be taken out of order, may be combined for consideration by the public body, and items may be pulled or removed from the agenda at any time.

      The notice must also include the time, place, and location of the meeting; a list of locations where the notice has been posted; a statement of the topics that will be discussed at the meeting and which items will be considered for action; public comment periods; indication that any portion of the meeting will be closed; the name of the person against whom administrative action will be taken, if applicable. Nev. R. Stat. 241.020.

      When Meetings May Be Closed

      Meetings may be closed for the following reasons:

      • When considering a person's character, alleged misconduct, professional competence, or the physical or mental health;
      • When preparing, revising administering, or grading examinations administered on behalf of the public body, or when considering an appeal of the results of an examination administered on behalf of the public body. Nev. R. Stat. 241.030.
      • By the Public Employees Retirement Board: Meetings with investment counsel limited to the planning of future investments of the establishment of investment objectives and policies, or meetings with legal counsel limited to advice upon claims or suits by or against the system. Nev. R. Stat. 286.150(2).
      • By the State Board of Pharmacy: Meetings held to deliberate on the decision in an administrative action or to prepare, grade or administer examinations. Nev. R. Stat. 639.050 and Op. Nev. Att'y Gen. No. 81-C (June 25, 1981) (opinion starts at p. 75 of linked document).
      • By any public body taking up matters or conduct that are exempt under the Open Meeting Law.
      • By public housing authorities, when negotiating the sale and purchase or property. However, the formal acceptance of the negotiated settlement should be made in an open meeting.
      • When authorized by statute. Nev. R. Stat. 241.020.

      Minutes, Recordings, and Documents

      When requested, a public body must provide, at no charge, at least one copy of an agenda, the proposed ordinance or regulation that will be discussed, any other supporting materials provided to the members of the public body, except those subject to confidentiality or nondisclosure agreements, pertaining to closed portions of the meetings, or those documents that are confidential by law.

       

      What Are Your Remedies for Violations of the Open Meeting Law?

      The Attorney General may sue for an injunction against any public entity in violation of the Open Meeting Law. Nev. R. Stat. 241.037. Additionally, any person who has been denied a right guaranteed by the Open Meeting Law may sue in the district court where the public entity resides. The suit must be brought within 120 days after the action was objected to. Nev. R. Stat. 241.037. If the plaintiff prevails, the court may award him reasonable attorney's fees and costs. Nev. R. Stat. 241.037(2).

      The Attorney General handles and investigates all potential open meeting violations, and may also bring a civil suit. Nev. R. Stat. 241.039. If the Attorney General finds that a violation has occurred, the public boy must include that information on its next agenda.

      Each member of a public body who attends a meeting where a violation occurs, and who knows that the meeting is in violation of the Open Meeting Law, is guilty of a misdemeanor. Nev. R. Stat. 241.040. Anyone in violation of the Open Meeting Law also could be civilly liable in an amount not to exceed $500.

      The Citizen Media Law Project would like to thank the Randazza Legal Group for preparing this section. The contents of this page should not be considered to be legal advice.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in New Jersey

      Note: This page covers information specific to New Jersey. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The New Jersey Open Public Meetings Act provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in New Jersey. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about New Jersey open meetings law, please consult the New Jersey Foundation for Open Government's Open Public Meetings Act Summary and the Reporters Committee for Freedom of the Press's Open Government Guide: New Jersey.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The New Jersey Open Public Meetings Act applies to public bodies. The law defines a "public body" as "a commission, authority, board, council, committee or any group of two or more persons organized under the laws of this State and collectively empowered as a voting body to perform a public governmental function . . . or collectively authorized to spend public funds." N.J. Stat. § 10:4-8(a) (scroll down).

      Public bodies can be part of state, county, or municipal government, and they share two salient features. First, they involve two or more persons acting jointly. The Open Public Meetings Act therefore does not apply to government officials who act in an individual capacity, like the governor or a mayor, when they meet with their subordinates. But the law might apply to these officials if they sit on a board, commission, or other multi-member body that makes decisions on public business. Second, to be covered by the Open Public Meetings Act, a body must vote on public matters or spend public funds. The law thus does not cover purely advisory boards or committees. It also does not cover any private group or body not created by a New Jersey statute, ordinance, or regulation, or federal government bodies.

      The Open Public Meetings Act specifically exempts from coverage the judiciary, grand and petit juries, parole boards, the State Commission of Investigations, the Apportionment Committee, and any political party committee. Therefore, the meetings of these groups need not be open to the public.

      Consult the Reporters Committee for Freedom of the Press's Open Government Guide: New Jersey for more information about what public bodies are covered.

      What is a Meeting?

      In addition to determining what government bodies are covered by the New Jersey Open Public Meetings Act, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). To be a "meeting" for purposes of the Open Public Meetings Act, a gathering must be: (1) open to all the public body’s members; (2) attended by a majority of the members of that public body; and (3) the members present must intend to discuss or act upon public business. "Public business" includes "all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business." N.J. Stat. § 10:4-8(c) (scroll down). Therefore, the term "meeting" applies to information-gathering and fact-finding sessions in addition to meetings where formal action is taken or discussed, so long as a majority of the public body's members are present. It does not apply to chance social or ceremonial gatherings.

      Governmental bodies may hold meetings by by written, telephonic, electronic, wireless, or other virtual means. However, an electronic meeting is still subject to the notice requirements and must be held at a designated place and time. While the law is not certain on this point, it appears that email communications between members of a governmental body may constitute a meeting.

      What Are Your Rights?

      Attending Meetings

      The Open Public Meetings Act gives all members of the public the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. New Jersey law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. See N.J. Stat. § 10:4-12(a).

      The right to attend a public meeting does not necessarily include a right to comment or participate. Most public bodies in New Jersey may decide for themselves whether to allow public participation and may impose rules limiting or regulating participation. The governing bodies of municipal government, however, must set aside a portion of every meeting, the length of which is determined by the municipal body, for public comment on any governmental issue that a member of the public "feels may be of concern to the residents of the municipality." N.J. Stat. § 10:4-12(a).

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, New Jersey law requires public bodies to give advance notice of their meetings. The Open Public Meetings Act requires that a public body create a schedule of its regular meetings for the year at the "annual reorganization" meetings or, if no reorganization meeting is held, by January 10 of each year. This schedule or "annual notice" must contain the time, place, and location of the public body's regularly scheduled meetings. See N.J. Stat. § 10:4-18.

      Public bodies may also hold "special" meetings, which are meetings not on the regular schedule. For these meetings, they must provide notice at least forty-eight hours before the meeting. The notice must contain the time, date, location and the agenda of the meeting (to the extent known). N.J. Stat. § 10:4-8.

      Both the annual notice and the special meeting notice must be (1) prominently posted in at least one public place reserved for such announcements; (2) transmitted to two newspapers designated as "official newspapers" of the public body; (3) filed with appropriate municipal or county clerk, or with the Secretary of State if the public body has statewide authority; and (4) mailed to "any person" who requests notice in writing and pays in advance a reasonable fee to cover the cost of providing notice. If you file a request for notice, you need to renew your request annually to ensure that you continue to receive notice.

      Public bodies may also post notice of their meetings on the Internet, but this is in addition to the other notice requirements.

      Special notice rules apply for emergency meetings. See the Open Government Guide: New Jersey for details

      Minutes and Recordings

      The Open Public Meetings Act requires public bodies to keep "reasonably comprehensible" minutes of their meetings and to make them available to the public for inspection and copying. The law requires public bodies to enter a statement into the minutes at the beginning of each meeting indicating that adequate notice was given and specifying how it was provided, or indicating that adequate notice was not provided and explaining the reason.

      For information on your ability to use recording devices at public meetings, see New Jersey Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of governmental bodies must be open to the public. If a governmental body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under the Open Public Meetings Act, a public body may hold a closed session when it is dealing with one of nine subject-area exemptions found in N.J.S.A. 10:4-12(b). The nine exemptions are for meetings where a public body will discuss:

      • any matter made confidential by federal or state law;
      • any matter for which the release of information would impair a right to receive funds from the U.S. government;
      • any material the disclosure of which constitutes an unwarranted invasion of individual privacy;
      • any collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement;
      • any matter involving the purchase, lease or acquisition of real property with public funds, the setting of banking rates or investment of public funds, where it could adversely affect the public interest if discussion of such matters were disclosed;
      • any tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair such protection and any investigations of violations or possible violations of the law;
      • any pending or anticipated litigation or contract negotiation where the public body is a party or may become a party;
      • any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body; and
      • any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.

      These exemptions make it permissible for a public body to close a portion of a meeting; they do not require it to do so. To close a session, a public body must identify the exemption justifying closure and adopt a resolution at an open meeting for which public notice has been given.

      Public bodies must keep minutes of their closed sessions, and these minutes are not open to the public. A public body must promptly make them available,however, once the necessity for maintaining confidentiality has passed.

      For more information on the exemptions to the open meetings requirement, see the Open Government Guide: New Jersey.

      What Are Your Remedies If You Are Denied Access?

      Under the New Jersey Open Public Meetings Act, any person may file a lawsuit in New Jersey Superior Court for violations of the open-meetings requirements. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, or requiring that an agency make public the minutes of an improperly closed meeting. You can also obtain a court order invalidating the actions of a public body taken in violation of the Open Public Meetings Act, but to do so you must file a lawsuit within within 45 days after the action you are challenging became public. The state may also pursue criminal penalties against members of a public body who violate the Open Public Meetings Act.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in New York

      Note: This page covers information specific to New York. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The New York Open Meetings Law ("OML") provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in New York. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about New York open meetings law, please consult the New York Committee on Open Government's "Your Right to Know" Guide and the Reporters Committee for Freedom of the Press's Open Government Guide: New York.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The OML covers public bodies. The law defines a "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof." N.Y. Pub. Off. Law § 102(2). A "quorum" just means a majority of members of the body, which is the number needed to take formal action on a matter of public business.

      A "public body" can be part of state, county, or municipal government, and the state legislature is covered. Public bodies share two salient features. First, they must be made of two or more members who act jointly on public business. Thus, the law does not cover government officials acting in an individual capacity, like the governor or a mayor, when they meet with subordinates. Second, a public body must perform a governmental function for the state or an agency of the state, such as cities, counties, towns, villages, and school districts. Examples of public bodies include state boards and commissions, city councils, town boards, village boards of trustees, and school boards. The law also applies to committees and subcommittees of these groups when they are made up solely of members of the public body. The OML does not apply to the judiciary or federal government bodies.

      Consult the Reporters Committee for Freedom of the Press's Open Government Guide: New York for more information on what public bodies are covered.

      What is a Meeting?

      In addition to determining what government bodies are covered by New York law, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). The OML defines a "meeting" as "the official convening of a public body for the purpose of conducting public business, including the use of videoconferencing for attendance and participation by the members of the public body." N.Y. Pub. Off. Law § 102(1). To have a meeting, there must be a "quorum" of members present. As noted above, a "quorum" is just a majority of the members of a public body. A gathering may constitute a "meeting" even if a public body takes no formal action -- it applies to any gathering where a quorum is present to discuss or deal with a matter of public business, regardless of what the gathering is called. The term applies to information-gathering and fact-finding sessions, as well as deliberations and debate about policy and proposed decisions. It does not apply to chance social or ceremonial gatherings.

      The OML authorizes public bodies to use videoconferencing for conducting meetings, provided that the public body provides advance notice and allows the public to attend at any of the meeting locations. Public bodies may not use email or other electronic means to circumvent the requirement that meetings be open to public.

      What Are Your Rights?

      Attending Meetings

      The OML gives the "general public" the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. New York law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      The right to attend meetings does not include a right to participate or comment. A public body may permit you to speak at open meetings, but does not have to do so.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, New York law requires public bodies to give advance notice of their meetings. If a meeting is scheduled at least one week ahead of time, the public body must post notice at least seventy-two hours in advance. The public body must post the notice in a public location (previously designated) and deliver notice to the "news media." It is not clear exactly what "news media" means and whether it could include non-traditional journalists and other online publishers. The notice must contain the time and place of the meeting, but need not contain an agenda. If the public body will hold the meeting via videoconference, the notice must indicate that videoconferencing will be used, identify the locations for the meeting, and state that the public has the right to attend the meeting at any of the locations. See N.Y Pub. Off. Law § 104.

      When a meeting is scheduled less than one week in advance, the public body must give notice to the public and the news media at "a reasonable time" prior to the meeting. N.Y Pub. Off. Law § 104. What time period qualifies as a "reasonable time" in advance will vary based on the circumstances.

      Minutes and Recordings

      The OML requires public bodies to record minutes of their meetings and to make them available to the public for inspection and copying. Proposed minutes must be available for public inspection within two weeks of the meeting.

      For information on your ability to use recording devices at public meetings, see New York Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under the OML, a public body may hold an executive session when it is dealing with one of eight subject-area exemptions found in N.Y. Pub. Off. Law § 105. The eight exemptions are for meetings that will involve:

      • matters which would imperil the public safety if disclosed;
      • any matter which may disclose the identity of a law enforcement agent or informer;
      • information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
      • discussions regarding proposed, pending or current litigation;
      • collective negotiations pursuant to article fourteen of the civil service law;
      • the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
      • the preparation, grading or administration of examinations; and
      • the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by the public body, but only when publicity would substantially affect the value of the real property or securities.

      The exemptions make it permissible for a public body to close a portion of a meeting; they do not require the public body to do so. To close a session, a public body must identify the exemption justifying closure and follow these steps:

      • A member must move during an open meeting to enter into executive session;
      • The motion must identify generally the subject or subjects to be considered; and
      • A majority of the total membership of the public body must vote to enter into executive session.

      A public body must keep and make publicly available minutes of executive sessions, but they need only contain "a record or summary of the final determination" of action taken during executive session and "the date and vote thereon." N.Y Pub. Off. Law § 106. Therefore, if a public body takes no final action in executive session, it does not need to record minutes for that session.

      For more information on the exemptions to the open-meetings requirements, see the "Your Right to Know" Guide and the Open Government Guide: New York.

      What Are Your Remedies If You Are Denied Access?

      Under New York law, any "aggrieved person" may file a lawsuit in New York state court for violations of the OML. Any member of the public probably could qualify as an "aggrieved person" because the OML grants rights of attendance, notice, and access to minutes to all members of the public. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future. You can also obtain a court order invalidating the actions of a public body taken in violation of the OML. If you go to court and win, the court may order the losing public body to pay your attorneys' fees, but the court is not required to do so. See N.Y Pub. Off. Law § 107.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in North Carolina

      Note: This page covers information specific to North Carolina. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The North Carolina Open Meetings Law provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in North Carolina. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about North Carolina open meetings law, please consult the North Carolina Open Government Coalition's Open Meetings Law Guide and the Reporters Committee for Freedom of the Press's Open Government Guide: North Carolina.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The North Carolina Open Meetings Law covers public bodies. The law defines a "public body" as

      any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of The University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function.

      N.C. Gen. Stat. § 143-318.10(b).

      Public bodies can be part of state, county, or municipal government, and they share two salient features. First, they involve two or more persons acting jointly. The Open Meetings Law thus do not apply to government officials who act in an individual capacity, like the governor or a mayor, when they meet with their subordinates. Second, to be covered by the Open Meetings Law, a body must exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function. This sounds complicated, but it means that groups carrying out most government functions are covered, with the exception of courts carrying out their traditional judicial function. Examples of public bodies include state boards and commissions, city councils, school boards, and governing boards affiliated with The University of North Carolina. The law also applies to any committee or subcommittee that carries out activities on behalf of a public body or advises a public body. It does not apply to federal government bodies.

      The Open Meetings Law also applies to the North Carolina General Assembly and most of its committees, but slightly different notice rules apply to these bodies. See N.C. Gen. Stat. § 143-318.14A. The law specifically exempts from coverage certain government bodies, including grand juries, law enforcement agencies, the Judicial Standards Commission, and the Legislative Ethics Committee.

      Consult the Reporters Committee for Freedom of the Press's Open Government Guide: North Carolina for more information on what public bodies are covered.

      What is a Meeting?

      In addition to determining what government bodies are covered by the North Carolina Open Meetings Law, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). The North Carolina Open Meetings Law requires that the official meetings of public bodies be open to the public. The law defines an "official meeting" as a gathering of a majority of members of a public body "for purposes of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business" of the public body. N.C. Gen. Stat. § 143-318.10(d). The term "official meetings" applies beyond formal meetings called to take public action, and include gatherings to weighh and reflect on the reasons for possible decisions and information-gathering sessions.

      The Open Meetings Law does not cover a gathering of the professional staff of a public body. It also does not cover a social or ceremonial gathering, so long as the public body does not use the gathering as an excuse for getting around the open-meetings requirements.

      A public body may hold a meeting by telephone or videoconferencing, but it must provide a location and way for the public to listen to the meeting. The public body may charge each member of the public a fee (maximum of $25) to defray the cost of providing a location and equipment. See N.C. Gen. Stat. § 143-318.13(a). An email exchange or other electronic communications could constitute an "official meeting" if public body members used electronic communications to engage with each other simultaneously. N.C. Gen. Stat. § 143-318.10(d) (definition of "official meeting" includes "simultaneous communication by conference telephone or other electronic means").

      What Are Your Rights?

      Attending Meetings

      The North Carolina Open Meetings Law gives "any person" the right to attend an official meeting of a public body, with exceptions for closed sessions discussed below. North Carolina law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend.

      The right to attend official meetings does not include a right to comment or participate. As a matter of practice, however, public bodies may give the public an opportunity to speak at meetings. The presiding officer of a public body may direct a person to leave a meeting if he or she interrupts, disturbs, or disrupts an official meeting. If the person creating a disturbance refuses to leave, the state may charge him or her with a misdemeanor. See the North Carolina Department of Justice's Questions and Answers Guide.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, North Carolina law requires public bodies to give advance notice of their official meetings to the public. If a public body has a regular schedule of its meetings, it must file the schedule in the following places:

      • for public bodies that are part of state government, with the Secretary of State;
      • for the governing board and each other public body that is part of a county government, with the clerk to the board of county commissioners;
      • for the governing board and each other public body that is part of a city government, with the city clerk; and
      • for each other public body, with its clerk or secretary, or, if the public body does not have a clerk or secretary, with the clerk to the board of county commissioners in the county in which the public body normally holds its meetings. See N.C. Gen. Stat. § 143-318.12(a).

      If the public body changes the schedule, it must file a revised schedule at least seven days before the first meeting held under the new schedule.

      A public body may also hold "special" meetings, which are meetings not listed on the regular schedule. A public body must give notice of a special meeting at least forty-eight hours before the meeting. The public body must post the notice on its principal bulletin board or, if it has no bulletin board, at the door of its usual meeting room. The public body must also mail or deliver notice to any person who requests notice in writing. The public body may impose a fee of up to $10 per calendar year for ordinary individuals. It may not impose a fee on a "newspaper, wire service, radio station, and television station" that requests notice. It is not clear whether a non-traditional journalist or other online publisher could qualify for no-fee notice, but you should consider asking for a fee waiver. A public body may require persons requesting notice to renew their requests quarterly (four times a year). See N.C. Gen. Stat. § 143-318.12(b)(2).

      Different notice rules apply to emergency meetings. See the Open Government Guide: North Carolina for details.

      Minutes, Recordings, and Documents

      Every public body is required to keep full and accurate minutes of all official meetings, including closed sessions. Public bodies must make these minutes publicly available for inspection and copying, except for the minutes of closed sessions when public inspection would frustrate the purpose of the closed session. A public body may satisfy this requirement through sound or video recordings. See N.C. Gen. Stat. § 143-318.10(e).

      Under the North Carolina public records law, you are entitled to documents and other background material distributed to members at official meetings.

      For information on your ability to use recording devices at public meetings, see North Carolina Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all official meetings of public bodies must be open to the public. If a public body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under the North Carolina Open Meetings Law, a public body may hold a closed session when it is dealing with one of nine subject-area exemptions found in N.C. Gen. Stat. § 143-318.11(a). A public body may close a session for the following nine purposes:

      • to prevent the disclosure of information that is privileged or confidential under state or federal law;
      • to prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award;
      • to consult with an attorney employed or retained by the public body in order to preserve the attorney‑client privilege between the attorney and the public body;
      • to discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations;
      • to establish, or to instruct the public body's staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract;
      • to consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee, or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee;
      • to plan, conduct, or hear reports concerning investigations of alleged criminal misconduct;
      • to formulate plans by a local board of education relating to emergency response to incidents of school violence; and
      • to discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.

      The exemptions make it permissible for a public body to close a portion of a meeting; they do not require the public body to do so. To close a session, a public body must identify the exemption justifying closure and vote during a open meeting to hold a closed session. When voting, the public body must refer to the specific statutory exemption relied on to close the meeting. If the public body indicates that it will discuss confidential information, it must identify the law that makes the information in question confidential. If it indicates that it will discuss pending litigation, it must identify the parties to the litigation.

      The minutes of closed sessions must give a general account of the closed session so that a person not in attendance would have a reasonable understanding of what took place. A public body may withhold the minutes if public inspection would frustrate the purpose of the closed session. See N.C. Gen. Stat. § 143-318.10(e). When the reason for holding a closed session is no longer valid, a public body must make these minutes available to the public.

      For more information on the exemptions to the open-meetings requirements, see the Open Government Guide: North Carolina.

      What Are Your Remedies If You Are Denied Access?

      Under North Carolina law, any person may file a lawsuit in North Carolina state court for violations of the Open Meetings Law. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, or requiring that a public body satisfy its notice obligations. You can also obtain a court order invalidating the actions of a public body taken in violation of the Open Meetings Law, but to do so you must file a lawsuit within within 45 days after the action you are challenging became public. The law provides for expedited review of lawsuits brought for violations of the Open Meetings Law. If you go to court and win, the court may order the losing public body to pay your attorneys' fees, but the court is not required to do so.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in Ohio

      Note: This page covers information specific to Ohio. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Ohio Open Meetings Act provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Ohio. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Ohio's Open Meetings Act, please consult the Ohio Attorney General's excellent guide, the 2012 Sunshine Laws Manual. It has detailed yet understandable explanations of the most important aspects of the state's open meetings and open records laws. For additional information, see the Reporters Committee for Freedom of the Press's Open Government Guide: Ohio.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Ohio Open Meetings Act does not apply to all government bodies in Ohio. It only covers "public bodies," a term with a specific legal definition. The law defines "public body" broadly to include most government bodies (i.e., entities made up of more than one member) that make decisions on matters of public business. At the state government level, the term "public body" means "any board, commission, committee, council, or similar decision-making body of a state agency, institution, or authority." Ohio Rev. Code § 121.22(B)(1)(a) (scroll down to version effective as of 2-12-2008). At the local government level, a "public body" is "any legislative authority or board, commission, committee, council, agency, authority, or similar decision-making body of any county, township, municipal corporation, school district, or other political subdivision or local public institution." Ohio Rev. Code § 121.22(B)(1)(a). At both the state and local government level, the term "public body" also includes any committee of one of the above-described public bodies. See Ohio Rev. Code § 121.22(B)(1)(b).

      Some examples of public bodies include the Ohio Elections Commission, the Ohio State Board of Education and its committees, boards of county commissioners, county boards of elections, city councils, city and town zoning boards, and local school boards. The Open Meetings Act does not apply to a single government official acting in his or her individual capacity. It also does not apply to the state legislature (which has its own rules requiring that sessions be open to the public), the judiciary, or federal government bodies. The Open Meetings Act identifies certain public bodies and types of gatherings that are exempt from the requirements of the Open Meetings Act:

      • grand juries
      • audit conferences
      • Adult Parole Authority hearings conducted at a correctional institution for the sole purpose of interviewing inmates to determine parole or pardon;
      • the Organized Crime Investigations Commission;
      • the Child Fatality Review Board;
      • State Medical Board meetings to determine whether to suspend a certificate without a prior hearing;
      • Board of Nursing meetings to determine whether to suspend a license or certificate without a prior hearing;
      • Board of Pharmacy meetings to determine whether to suspend a license without a prior hearing;
      • State Chiropractic Board meetings to determine whether to suspend a license without a prior hearing;
      • meetings of the Executive Committee of the Emergency Response Commission when determining whether to issue an enforcement order or request that a civil action, civil penalty action, or criminal action be brought.

      The Ohio Attorney General's guide, the 2012 Sunshine Laws Manual, has a great deal of additional information about what government bodies are covered by the Open Meetings Act.

      What is a Meeting?

      In addition to determining what government bodies are covered by the Ohio Open Meetings Act, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). Under Ohio law, a gathering is a "meeting" if it has three characteristics. First, it must be a prearranged gathering. Second, a majority of the members of the public body must attend. For example, if a school board has nine members, then five members would be required for a "meeting" to take place. If the school board created a finance committee with five members, then three members of the finance committee would be required for a "meeting" of the finance committee to take place. Third, the purpose of the meeting must be to conduct, transact, deliberate, or discuss public business. Thus, the Open Meetings Act would not apply to a social or ceremonial gathering. Nor would it cover a conference or similar event that a majority of members happened to attend, so long as they did not use the event as an excuse to deliberate or discuss public business without an open meeting.

      Public bodies may not hold meetings through teleconferencing or videoconferencing. A member must be physically present to deliberate or vote on any matter of public business. Furthermore, the Attorney General indicates that members of a public body may not circumvent the open-meetings requirements by holding a conference call and claiming that there is no "meeting" because a majority of members is not present. One Ohio court has indicated that email communications are not covered by the Open Meetings Act. See Haverkos v. Nw. Local School Dist. Bd. Of Educ., 2005 Ohio App. LEXIS 3237, at *7-8. (Ohio Ct. App. July 8, 2005).

      What Are Your Rights?

      Attending Meetings

      The Ohio Open Meetings Act gives "any person" the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. Ohio law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. The right to attend does not include a right to participate or comment. Moreover, if you act in a disruptive fashion, a public body may have you removed from a meeting. Sometimes, a public body will voluntarily provide time for public comment.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Ohio law requires public bodies to provide advance notice of their meetings to the public. Unlike most states, however, Ohio does not impose specific requirements for how far in advance notice must be given. Instead, the law provides that each public body will establish by rule "a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings." Ohio Rev. Code § 121.11(F).

      Public bodies must establish a notification rule for "regular meetings," which are meetings held at regularly scheduled intervals. A public body must give advance notice that lets the public know the time and place of these meetings. Whatever method a public body chooses, it must give notice to members of the news media and the public who have requested notification. A public body can satisfy this requirement, for example, by mailing an agenda to subscribers to a mailing list or mailing notices in self-addressed stamped envelopes provided by those requesting notification. If you haven't requested notice for the meetings of a public body, you should check its website for a posted schedule because many public bodies publish notice on their websites in addition to providing it to those who have specifically requested it.

      A public body may also hold "special meetings," which are meetings not listed on the regular schedule. A public body must give notice of a special meeting at least twenty-four hours in advance of the meeting, and the notice must include the time, place, and a description of the purpose of the meeting. As with regular meetings, a public body must provide notice to members of the news media and the public who have requested notification, and may post notice in other locations, including the Internet.

      In an emergency situation, a public body may call an "emergency meeting." A public body must give notice of an emergency meeting immediately after calling the meeting, and the notice must include the time, place, and a description of the purpose of the meeting. Again, a public body must deliver notice to members of the news media and the public who have requested notification, and may post notice in other locations, including the Internet.

      Minutes and Recordings

      Public bodies must keep full and accurate minutes of all meetings, including closed sessions. Generally, the minutes should provide sufficient information to permit the public to understand and appreciate the rationale behind the public body’s decisions. For closed sessions, the minutes need only give a general sense of the subject matter discussed. Public bodies must make all minutes available to the public for inspection and copying at a reasonable fee.

      For information on your ability to use recording devices at public meetings, see Ohio Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under the Ohio Open Meetings Act, a public body may hold a closed session when it is dealing with one of seven subject-area exemptions found in Ohio Rev. Code § 121.22(G). The seven exemptions are for meetings dealing with the following topics:

      • the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing (this exemption does not apply to the discipline of an elected official for conduct related to the performance of his or her duties);
      • the purchase or sale of real estate for public purposes;
      • pending or imminent litigation;
      • negotiations or bargaining sessions with public employees concerning their compensation or other terms and conditions of their employment;
      • matters required to be kept confidential by federal law or regulations or state statutes;
      • details relative to the security arrangements and emergency response protocols for a public body or a public office;
      • matters involving trade secrets (but only in connection with local hospitals).

      The exemptions make it permissible for a public body to close a portion of a meeting; they do not require it to do so. To close a session, a public body must identify the exemption justifying closure on the record during an open meeting, and a majority of members present must vote to hold a closed session. No formal action may be taken during a closed session.

      A handful of public bodies may close their meetings to the public when dealing with additional topics, listed in Ohio Rev. Code § 121.22(E). To do so, however, the members must unanimously vote to close the meeting. See page 14 of the Attorney General's guide for details.

      For more information on the exceptions to the open-meetings requirements, see the 2012 Sunshine Laws Manual and the Open Government Guide: Ohio.

      What Are Your Remedies If You Are Denied Access?

      If you believe that a public body has violated your rights, you can sue in state court. Under Ohio law, any person may file a lawsuit for violation of the Open Meetings Act in the court of common pleas for the county where the meeting in question took place. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that a public body satisfy its notice obligations, or that a public body provide access to minutes improperly withheld. In addition, if you go to court and win, the court must force the public body to pay you a $500 civil penalty, and it may order the public body to pay your attorneys' fees. However, if you go to court and lose, a court might order you to pay the winning public body's attorneys' fees, if it determines that your legal claim was frivolous. This would not happen unless your legal claim were utterly and obviously without any merit. If you want to file a lawsuit for violation of the Open Meetings Act, you must file your lawsuit within two years of the violation in question.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

       

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      Open Meetings Laws in Pennsylvania

      Note: This page covers information specific to Pennsylvania. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Pennsylvania Sunshine Act gives the public the right to attend the meetings of a large number of government bodies at the state and local level in Pennsylvania. The law also entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Pennsylvania open meetings law, please consult the Open Meetings/Open Records Guide, prepared by the Pennsylvania Governor's Center for Local Government Services, and the Reporters Committee for Freedom of the Press's Open Government Guide: Pennsylvania.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The Pennsylvania Sunshine Act covers all legislative and executive "agencies" at the state and local level. The term "agency," which is defined at 65 Pa. Cons. Stat. § 703(full text - scroll down), applies to multi-member bodies that perform an essential governmental function, exercise governmental authority, and take official action through the joint action of their members. This includes the Pennsylvania General Assembly and its committees, state agencies in the executive branch, political subdivisions (including all their constituent boards and commissions), and municipal authorities (such as city councils). The statute defines a "political subdivision" as "[a]ny county, city, borough, incorporated town, township, school district, intermediate unit, vocational school district or county institution district." In addition, the term "agency" includes school boards and the boards of public colleges and universities. Finally, the term also applies to committees created by the above-described agencies that are authorized to take official action or render advice on matters of agency business.

      What is a Meeting?

      In addition to determining what government bodies are covered by the Pennsylvania open meetings law, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under the Pennsylvania Sunshine Act, a gathering must have three characteristics in order to count as a "meeting." First, the meeting must be prearranged. Second, a quorum of agency members must attend. The term "quorum" just means a simple majority of agency members. For example, if a school board has nine members, then five members would be required for a "meeting" to take place. If the school board created a finance committee with five members, then three members of the finance committee would be required for a "meeting" of the finance committee to take place. Third, the purpose of the gathering must be to discuss or deliberate on agency business or take official action. The phrase "official action" means establishing agency policy, making a decision on a matter of agency business, and voting on any motion, proposal, resolution, regulation, ordinance, report or order. The Sunshine Act does not apply to a purely social or ceremonial event unrelated to the agency's business. Nor does it apply to a "conference," defined as "[a]ny training program or seminar, or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities." 65 Pa. Cons. Stat. § 703.

      Agency members may participate in a meeting by telephone or video conference, and remote members count towards a quorum. See Babac v. Penn. Milk Marketing Bd., 613 A.2d 551 (Pa. 1992). Email communications among agency members likely would constitute a meeting if they contained "deliberations" about agency business, but no case has addressed this issue yet.

      There are special rules for what meetings of the Pennsylvania General Assembly are covered by the open-meetings requirements. The Sunshine Act covers:

      • all meetings of committees where bills are considered;
      • all hearings where testimony is taken; and
      • all sessions of the Pennsylvania Senate and House of Representatives.

      The Pennsylvania open-meetings requirements do not apply to caucuses and meetings of any ethics committee created by Pennsylvania House or Senate rules. See 65 Pa. Cons. Stat. § 712.

      What Are Your Rights?

      Attending Meetings

      The Pennsylvania Sunshine Act gives "the public" the right to attend the meetings of covered agencies, with exceptions for closed sessions discussed below. Pennsylvania law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. In addition to the right to attend meetings, you also have a limited right to comment. Most local-level boards and councils must afford the public a right to comment before official action is taken. See 65 Pa. Cons. Stat. § 710.1. Agencies may adopt reasonable rules for the comment period to maintain an orderly process, including by imposing time limits.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Pennsylvania law requires agencies to give advance notice of their meetings. The Pennsylvania Sunshine Act distinguishes between two types of meetings: (1) regularly scheduled meetings; and (2) special meetings. A "special meeting" is defined as "a meeting scheduled by an agency after the agency's regular schedule of meetings has been established." 65 Pa. Cons. Stat. § 703. Agencies must publish notice of their regularly scheduled meetings once a year, at least three days before the first meeting. The notice must include the place, date, and time of the first meeting and the schedule for the remaining meetings. Agencies must publish the notice in a newspaper of general circulation and post it in a prominent location at the principal office of the agency or the building in which the meeting is to be held. In addition, agencies must provide copies of the notice to the news media and interested citizens who request a copy and provide the agency with a stamped, self-addressed envelope beforehand. 65 Pa. Cons. Stat. § 709(c). For special meetings, agencies must publish notice in a newspaper of general circulation and post notice (as described above) at least twenty-four hours before the meeting. Agencies may call emergency meetings without notice under limited circumstances.

      Minutes and Recordings

      The Pennsylvania Sunshine Act requires agencies to record minutes of their open meetings and to make them available to the public for inspection and copying. An audio or video recording of a meeting does not satisfy this requirement.

      For information on your ability to use recording devices at public meetings, see Pennsylvania Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all agency meetings must be open to the public. If an agency wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under the Pennsylvania Sunshine Act, an agency may hold a closed session when it addresses one of six subject-area exemptions found in 65 Pa. Cons. Stat. § 708(a) or when it is dealing with certain confidential or privileged deliberations or actions, as provided in 65 Pa. Cons. Stat. § 716. The six primary exemptions are for meetings dealing with the following topics:

      • personnel matters, including hiring, promoting, disciplining, or dismissing specific public employees or officers, but not including filling vacancies in any elective office;
      • the negotiation or arbitration of a collective bargaining agreement;
      • the purchase or lease of real estate;
      • pending or imminent litigation;
      • matters of agency business which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matters related to the initiation and conduct of investigations of possible or certain violations of the law and quasi-judicial deliberations; and
      • matters of academic admission or standings (for committees of a board or council of trustees of a public university or college or the Board of Governors of the state system of higher education only).

      These exemptions make it permissible for an agency to close a portion of a meeting; they do not require it to do so. If an agency chooses to hold a closed session, it must announce a specific reason for doing so on the record at an open meeting immediately prior or subsequent to the executive session. An agency may only take final action on matters discussed during an executive session at an open meeting.

      For more information on the exceptions to the Pennsylvania open-meetings requirements, see the Open Meetings/Open Records Guide and the Open Government Guide: Pennsylvania.

      What Are Your Remedies If You Are Denied Access?

      If you believe that an agency has violated your rights, you can sue in Pennsylvania state court. Under Pennsylvania law, any person may file a lawsuit for violations of the Sunshine Act. If the matter involves a state-level agency, you must sue in the Commonwealth Court. If a matter involves local-level agencies, you must sue in the Court of Common Pleas. If you file a lawsuit and win, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that an agency satisfy its notice obligations, or that it provide access to minutes improperly withheld. If you wish to challenge past agency action, you must file your lawsuit within thirty days of any violation that took place at an open meeting, or within thirty days of discovering an action that took place in an executive session (but in no circumstances after more than a year from the date of the session). If you go to court and win, the court may order the losing agency to pay your attorneys' fees if it finds that the agency willfully violated the Sunshine Act. On the other hand, if you go to court and lose, the court may order you to pay the agency's attorneys' fees if it finds that your lawsuit was frivolous. This would not happen unless your legal claim were utterly and obviously without any merit.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the agency in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the agency continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

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      Open Meetings Laws in Tennessee

      Note: This page covers information specific to Tennessee. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      See the note below regarding links to statutory provisions in this article.

      You have a right under Tennessee public meetings law, Tenn. Code Ann. § 8-44-101 through § 8-44-111, to attend any meeting held by a governing body where a quorum of members is required to make a decision, except where otherwise provided in the state constitution.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      All public bodies are subject to the public meetings law. An agency is considered a public body if it has the power to decide policy or recommend actions to another entity that either decides policy or makes similar recommendations of its own. You also have a right to attend meetings of boards of nonprofits, if they:
      • Contract with a state agency to receive public grants, dues, or fees that make up at least 30% of their income, or
      • Are authorized by the state to act on behalf of a city or county, unless the county has 400,000 people or more.

      You also can attend meetings of telephone cooperatives as part of the Telephone Cooperative Transparency Act of 2011.

      What is a Meeting?

      A meeting is defined as a quorum of members gathering to make a decision. Statutes that govern the individual public body will define what constitutes a quorum for that body, although the law usually requires a majority of any governing board. For example, a quorum for any county governing body is defined in Tenn. Code Ann. § 5-5-108 as a majority of the members of the county legislative body, and a quorum for city commissioners is defined as a majority of the members of the board of commissioners under Tenn. Code Ann. § 6-20-210.

      Public agencies can communicate electronically, which includes posting in an online forum, but electronic communications posted in a forum will not substitute for a public meeting. If the agency communicates through a forum, you have a right to access that forum and to have notice of the use of a forum.

      Members can participate electronically so long as there is a physical quorum present at the location mentioned in the meeting notice.

      What Are Your Rights?

      Attending Meetings

      You have a right to get minutes of a meeting, to attend the meeting, and to have the public officials vote in public even if they have had discussions in executive session. You also have a right to hear everything at the meeting, so if the members don't have adequate microphones or sound, you should say something about it.

      If you have questions about the state's open meetings law, you can use educational programs and materials that the Office of Open Records Counsel must make available to you.

      Notice

      If a public body has a meeting that is scheduled by law, then it has to give you notice that is "adequate" under § 8-44-103. "Adequacy" is not defined in the statute. However, the Supreme Court of Tennessee in Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511 (1974) stated as a general rule that "adequate public notice" would be determined based on the totality of the circumstances — a phrase that refers to all the facts and circumstances in the specific situation.  Notice could take the form of a web site announcement, a calendar posting, or some other form, so it would be wise to inquire how the particular public agency complies with this section.

      Because what notice is sufficient will vary, you should check the web site of any public body frequently or consult with the agency to find out when mandated meetings are scheduled. The statute or charter creating the public body will likely provide a time frame for giving proper notice of meetings, so be sure to refer to this document.

      If the public body has a special meeting, meaning one that is not previously scheduled by law (i.e., where the time of the meeting is set forth by statute, regulation or ordinance), the public body must still give "adequate" notice.

      Minutes, Recordings, and Documents

      You can inspect meeting minutes, which must be recorded and made available promptly after the meeting. The meetings must at least include a record of who attended the meeting and any motions, proposals and resolutions that were discussed, along with any votes. 

      An Exception: Closed Meetings or Sessions

      You don't have a right to attend portions of meetings where the public body will discuss proprietary information or trade secrets. The constitution allows for state lawmakers to decide whether they should meet in secret (sometimes called an "executive session"). If the public body does meet in executive session, they must still vote in public.

      What Are Your Remedies If You Are Denied Access?

      If you've been denied access to a public meeting, you can seek relief in the courts. The courts have the power to enforce the open meetings law, which can include ordering the agency to comply and forbidding them from violating the act any further. If you sue, you must do so within ten years of the violation, although you are probably better served to file suit within a year or less.

      If a court forbids the agency from violating the act, the judge must order the agency to write to the court twice a year to show they are complying with the open meetings law. The court can void any action taken in violation of the act, except for action affecting the agency's public debt.

      The statute says nothing about repaying costs or attorney fees if you file suit, so be ready to take on the expenses of filing a suit.

      Additionally, refer to our section on Finding Legal Help for more information on how to get legal assistance to help you assess the merits of a potential lawsuit against the agency. 

      NOTE: The Tennessee Code is currently published by LexisNexis; all hyperlinks to statutes in this article will direct you to the LexisNexis web site.  Because the LexisNexis site does not permit linking to individual statutes, you will need to find the text of the statute you are looking for using the numbers assigned to the statute. The first number in the statute is the Title, the second number is the Chapter, and the third number is the specific Section (the first digit of the Section number also represents the "Part" of the statute, so Section 101 will be in Part 1). If you are interested, for example, in § 8-44-101 (that is, Title 8, Chapter 44, Section 101), after you click the link you can access the statute as follows:

      1. Agree to the terms of service;
      2. Scroll down to "Title 8" on the list that appears and click on the plus emblem next to "Title 8" in order to expand the entry for that Title;
      3. Scroll down within Title 8 to "Chapter 44" for public meetings and click on the plus emblem to expand that Chapter;
      4. Scroll down within Chapter 44 to "Part 1" and click on the plus emblem to expand that Part; and
      5. Click on the link provided for the specific Section in which you are interested.
      Alternatively, you can (1) agree to the terms of service, (2) type "8-44-101" into the search bar at the top of the Title list, and (3) click "Search."  This will also provide you with a link to the specific Section.

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      Open Meetings Laws in Texas

      Note: This page covers information specific to Texas. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Texas Open Meetings Act ("TOMA") provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Texas. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Texas open meetings law, please consult the Texas Attorney General's 2010 Open Meetings Act Handbook and the Reporters Committee for Freedom of the Press's Open Government Guide: Texas.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      TOMA covers the meetings of "governmental bodies." Texas Gov't Code § 551.001(3) lists a number of state and local government entities that fit into this category:

      • a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;
      • a county commissioners court in the state;
      • a municipal governing body in the state;
      • a deliberative body that has rulemaking or quasi-judicial (i.e., similar to a court) power and that is classified as a department;
      • a school district board of trustees;
      • a county board of school trustees;
      • a county board of education;
      • the governing board of a special district created by law;
      • a local workforce development board created under state law;
      • a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and
      • a nonprofit corporation organized under state law that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under the tax code.

      As a general matter, governmental bodies are multi-member state and local bodies that exercise a government function, such as making rules and setting government policy. At the state level, these bodies must have "one or more elected or appointed members." The term also includes committees of the Texas state legislature. Beyond these generalities, figuring out exactly what bodies are governed by TOMA is a complex task -- consult the 2004 Open Meetings Act Handbook section on governmental bodies for additional details.

      What is a Meeting?

      In addition to determining what government bodies are covered by the Texas open meetings law, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under TOMA, a "meeting" is any gathering of a quorum of members of a governmental body in which they discuss public business or public policy within the body's supervision or control, or at which they consider or take any formal action. The term also applies to information-gathering and fact-finding sessions called by the governmental body where a quorum of members are present and the session relates to the body's public business. The term "quorum" just means a simple majority of members of the governmental body. For example, if a school board has nine members, then five members would be required for a "meeting" of the finance board to take place.

      The term "meeting" does not apply to a purely social event unrelated to the governmental body's public business or a "a regional, state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference." Texas Gov't Code § 551.001(4)(B)(iv).

      Governmental bodies may not hold meetings by telephone or video conference except under limited circumstances. While the law is not certain on this point, it appears that email communications between members of a governmental body may constitute a meeting. See Opp. Att'y Gen. JC-0307 (deliberations covered by TOMA may include email).

      What Are Your Rights?

      Attending Meetings

      TOMA gives "the public" the right to attend the meetings of governmental bodies, with exceptions for closed sessions discussed below. Texas law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. The right to attend meetings does not include the right to participate or comment. As a matter of practice, however, a governmental body may give the public an opportunity to speak at a meeting. According to the Attorney General, if it does so, it "may set reasonable limits on the number, frequency and length of presentations before it, but it may not unfairly discriminate among speakers for or against a particular point of view."

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Texas law requires governmental bodies to give advance notice of their meetings. Unfortunately, Texas notice requirements are complex. One statutory provision states that governmental bodies must post notice of their meetings in a place readily accessible to the general public for at least seventy-two hours before the scheduled time of the meeting. Texas Gov't Code § 551.043(a). Another statutory provision requires the secretary of state to post notice on the Internet seven days in advance for meetings of a state board, commission, department or officer with statewide jurisdiction. Texas Gov't Code § 551.044(a). The notice must include the time, location, and subject matter to be discussed at the meeting. A complex array of rules governs where different kinds of government bodies must post notice. See the Notice Requirements section of the Attorney General's Handbook for details.

      One notable requirement is that school districts must give notice of each meeting to any "news media" that has requested special notice and agreed to reimburse the district for the cost of providing notice. Texas Gov't Code § 551.052. The school district can give notice by telephone, fax, or email. It is not clear whether the term "news media" would cover non-traditional journalists and other online publishers, but you may want to request notice in any event. A school district will have little incentive to deny this simple request. If the school district accepts your request, you should renew it every year to ensure that you continue to receive notice.

      Other notice rules apply for special and emergency meetings. See the Open Government Guide: Texas for details.

      Minutes and Recordings

      TOMA requires governmental bodies to record minutes of their meetings and to make them available to the public for inspection and copying. They may, but need not, make audio or video recordings of their meetings. If a governmental body chooses to do so, however, the recording is a public record that you can access just like ordinary minutes. A governmental body may also broadcast meetings over the Internet, but it is not required to do so.

      For information on your ability to use recording devices at public meetings, see Texas Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of governmental bodies must be open to the public. If a governmental body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under TOMA, a governmental body may hold a closed session when it is dealing with one of fourteen subject-area exemptions found in Texas Gov't Code §§ 551.071 through 551.088. These exemptions make it permissible for a governmental body to close a portion of a meeting; they do not require it to do so. If a governmental body is dealing with one of these enumerated subject areas, then it may hold a closed session, but it must also convene the executive session as part of an open meeting, and the presiding officer must publicly identify the statutory exemption relied on to close the meeting. Governmental bodies must keep a certified agenda or make a tape recording of the executive session and retain it for at least two years. They do not have to make the agenda or recording public.

      For more information on the exceptions to the open meetings requirement, see the Executive Session section of the Attorney General's Handbook and the Open Government Guide: Texas.

      What Are Your Remedies If You Are Denied Access?

      If you believe that a governmental body has violated your rights, you can sue in Texas state court. Under Texas law, an "interested person, including a member of the news media," may bring a lawsuit for violations of TOMA. See Texas Gov't Code § 551.142. The term "interested person" is broad -- courts have found that a government league, an environmental group, and a local homeowners' group fit the definition. They have also indicated that any individual living in an area affected by the governmental body's authority will qualify as "interested." The CMLP located no Texas case law addressing whether the term "news media" would encompass non-traditional journalists and other online publishers, but there is no reason to suppose that you could not take advantage of this statutory language.

      If you file a lawsuit and win, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that a governmental body satisfy its notice obligations, or that it provide access to minutes improperly withheld. Under some circumstances, a court may invalidate the past actions of a governmental body taken in violation of TOMA. If you are successful in court, the losing governmental body may have to pay your attorneys' fees and costs.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the governmental body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the agency continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

       

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      Open Meetings Laws in Virgina

      Note: This page covers information specific to Virginia. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The Virginia Freedom of Information Act, known as Virginia FOIA, provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Virginia. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Virginia open meetings law, please consult the Virginia Freedom of Information Advisory Council's Access to Public Meetings Guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Virginia.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      Virginia FOIA covers the meetings of "public bodies," defined as

      any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.

      Va. Code § 2.2-3701. This definition encompasses a large number of state and local boards, commissions, and agencies, as well as the both houses of the Virginia General Assembly. It also includes committees created by a public body to perform delegated functions or to act in an advisory capacity, whether or not private individuals are members. At the state level, examples of public bodies include the State Board of Education, the State Air Pollution Control Board, the Innovative Technology Authority, and the Virginia Commission for the Arts. For a representative list of state-level public bodies, see the Commonwealth Calendar. At the local level, examples include local boards of education, city councils, and county zoning boards, among many other public bodies exercising local government authority.

      What is a Meeting?

      In addition to determining what government bodies are covered by Virginia FOIA, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under Virginia FOIA, a "meeting" is any gathering of three or more members of a public body (or a quorum, if a quorum is less than three) to discuss or transact business of the public body. The law applies to all discussions, deliberations, and formal action. A gathering of employees of a public body, as opposed to members of the body, is not a meeting covered by Virginia FOIA.

      A "meeting" does not include purely social and ceremonial gatherings, nor would it likely apply to an academic conference or similar event that members of a public body happened to attend. Virginia FOIA does not cover attendance of members of a public body at

      • any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body; and
      • a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.

      Va. Code § 2.2-3707(G). Along these lines, the Virginia Supreme Court has ruled that no "meeting" took place when city council members attended a meeting organized by citizens to discuss traffic and safety issues, when the city council had no business pertaining to traffic control before it at the time and was unlikely to address such issues in the future. See Beck v. Shelton, 593 S.E.2d 195 (Va. 2004).

      State-level public bodies may hold meetings by telephone or video conference as long as a majority of members are physically present in one location and the public has access to all communications, among other requirements. Local government bodies generally may not do so. The Virginia Supreme Court has held that email communications between members of a public body do not constitute meetings unless there is an element of simultaneity present that makes the exchange similar to a telephone conversation. See Beck v. Shelton, 593 S.E.2d 195 (Va. 2004).

      What Are Your Rights?

      Attending Meetings

      Virginia FOIA gives the public the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. Virginia law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. The right to attend meetings does not include the right to participate or comment.

      Notice

      The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Virginia law requires public bodies to give notice of their meetings at least three working days before a meeting. The notice must contain the date, time, and location of the meeting, but an agenda is not required. If a state-level public body includes at least one member appointed by the Governor, the notice must also indicate whether or not public comment will be received at the meeting and, if so, the approximate point during the meeting when public comment will be received. Va. Code § 2.2-3707(C). Public bodies must post notice in "a prominent public location at which notices are regularly posted" and in the office of the clerk or chief administrator of the public body. State-level bodies must also post notice on their websites and the Commonwealth Calendar.

      Public bodies must deliver notice directly to any person who files a written request for notification. When making a request for notification, you should provide the public body with your name, address, zip code, daytime telephone number, email address, and the name of your organization, if any. You need to renew the request annually. See Va. Code § 2.2-3707(E).

      Other notice rules apply for special and emergency meetings. See the Open Government Guide: Virginia for details.

      Minutes, Recordings, and Documents

      Virginia FOIA requires public bodies, with a few exceptions discussed below, to record minutes of their meetings and to make them available to the public for inspection and copying. They may, but need not, make audio or video recordings of their meetings. If a public body chooses to do so, however, the recording is a public record that you can access just like ordinary minutes. State agencies in the executive branch that are subject to Virginia FOIA must post their minutes to the Commonwealth Calendar. See Va. Code § 2.2-3707.1.

      Deliberations of the following public bodies need not be recorded in minutes: (1) committees of the General Assembly; (2) legislative interim study commissions and committees, including the Virginia Code Commission; (3) study committees or commissions appointed by the Governor; and (4) study commissions or study committees, or any other committees or subcommittees appointed by the governing body or school board of a county, city or town, except where the membership of the commission, committee or subcommittee includes a majority of the members of the governing body. See Va. Code § 2.2-3707(I).

      In addition, the public is entitled to copies of agenda packets given to members at a meeting, and all other documents furnished to members. The public has a right to these documents at the same time they are furnished to members. See Va. Code § 2.2-3707(F).

      Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body conducting the meeting may adopt rules governing the placement and use of recording equipment to prevent interference with the proceedings, but may not prohibit or otherwise prevent any person from recording any portion of a meeting required to be open. In addition, public bodies are prohibited from conducting a meeting required to be open in any building or facility where such recording devices are prohibited. Va. Code § 2.2-3707(H). For additional information on your ability to use recording devices in Virginia, see Virginia Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under Virginia FOIA, a public body may hold a closed session when it is dealing with one of forty-four subject-area exemptions found in Va. Code § 2.2-3711. If a governing body is dealing with one of these enumerated subject areas, then it may hold a closed session, but it must also meet the following procedural requirements:

      • The public body must affirmatively vote during an open meeting on a motion that
      1. identifies the subject matter of the closed meeting;
      2. states the purpose of the closed meeting; and
      3. makes explicit reference to the statutory exemption relied on to close the meeting.
      • At the end of the closed meeting, the public body must reconvene in an open meeting and take a vote certifying that that they discussed only exempt subject matters identified in the previous motion.
      • Decisions made in a closed meeting do not become official until the public body reconvenes in an open meeting following the proper procedure, reasonably identifies the substance of the decision, and takes a recorded vote on the decision agreed to in the closed meeting. Va Code § 2.2-3711(B). Any and all votes taken to authorize the transaction of any public business must be taken and recorded in an open meeting. Va. Code § 2.2-3710(A).

      Public bodies are not required to record minutes for closed meetings.

      For more information on the exemptions to the Virginia open-meetings requirements, see the Access to Public Meetings Guide and the Open Government Guide: Virginia.

      What Are Your Remedies If You Are Denied Access?

      If you believe that a public body has violated your rights, you can sue in state court. Under Virginia law, any person may file a lawsuit for violation of Virginia FOIA. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that a public body satisfy its notice obligations, or that a public body provide access to minutes improperly withheld. In addition, if you go to court and win, a court generally must award you reasonable attorneys' fees and costs. Special rules about which district or circuit court you need to sue in are located in Va. Code § 2.2-3713(A)(1)-(3).

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

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      Open Meetings Laws in Washington

      Note: This page covers information specific to Washington. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      Washington's Open Public Meetings Act (OPMA) provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Washington. Washington law also gives you the ability to inspect and copy meeting minutes and imposes notice requirements on government agencies. You should consult the Washington Attorney General's Open Government Internet Manual: Chapter 3 and the Reporters Committee for Freedom of the Press's Open Government Guide: Washington for additional information on the OPMA. For detailed information about how the OPMA applies at the local level, see the Municipal Research and Services Center's The Open Public Meetings Act: How it Applies to Washington Cities and Counties.

      What Meetings are Covered?

      What Government Bodies Are Covered?

      The OPMA requires that meetings of "the governing body of a public agency" be open to the public. Wash. Rev. Code § 42.30.030. This covers multi-member bodies that govern state and local government agencies. At the state level, it includes boards and commissions, such as the Washington State Liquor Control Board, the Washington Utilities and Transportation Commission, the Washington State Transportation Commission, and the Public Employees' Retirement Board. At the local level, it applies to groups like boards of county commissioners, city councils, school boards, public utility district boards, planning commissions, civil service commissions, and boards of adjustment. It also applies to committees created by one of these governing bodies, if the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

      On the other hand, state and local agencies governed by individuals are not subject to the open meetings requirement. Some examples of individual-headed agencies include the Washington Department of Labor and Industries, the Washington Department of Licensing, the Department of Social and Health Services, the Washington State Patrol, and the Washington State Department of Employment Security.

      What is a Meeting?

      In addition to determining what government bodies are covered by the OPMA, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under Washington law, a "meeting" takes place whenever a majority of a governing body's members congregate to deal in any way with their official business. This includes simply discussing some matter having to do with official business, taking public testimony, engaging in deliberations, reviews, or evaluations, and taking collective action on a motion, proposal, resolution, order, or ordinance. A "meeting" would not include purely social and ceremonial gatherings, nor would it likely apply to an academic conference or similar event that a majority of members happened to attend.

      The OPMA can apply to email and/or telephonic communications between a majority of the members of a governing body depending on the circumstances. For instance, an exchange of emails constitutes a meeting if a majority of members "collectively intend to meet [by email] to transact the governing body's official business" and "communicate about issues that may or will come before [them] for a vote." Wood v. Battle Ground School District, 107 Wash. App. 550 (Wash. Ct. App. 2001). Members do not engage in a meeting simply by receiving information by email or telephone about upcoming issues.

      What Are Your Rights?

      Attending Meetings

      The OPMA gives "all persons" the right to attend the meetings of governing bodies of public agencies, with exceptions for closed sessions discussed below. Washington law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. A governing body may not impose conditions on attendance, such as requiring you to register or complete a questionnaire. See Wash. Rev. Code § 42.30.040.

      The OPMA does not give the public a right to participate or comment during open meetings, but as a matter of practice the public sometimes participates in meetings. The governing body has authority to limit the time of speakers to a uniform amount or to not allow anyone to speak.

      Notice

      Washington has unusual and relatively weak notice requirements. The OPMA requires the governing bodies of public agencies to set a schedule of "regular meetings" by ordinance, resolution, bylaw, or other formal measure. A "regular meeting" is defined as a "recurring meeting[] held in accordance with a periodic schedule declared by statute or rule." Wash. Rev. Code § 42.30.075. State agencies must publish this schedule in January of every year in the Washington State Register, and they must publish notice at least twenty days in advance in the State Register if they change the schedule. Otherwise, there are no notice requirements for regular meetings, and governing bodies of state and local agencies need not provide the public with an agenda or other description of the items of business to be discussed at regular meetings.

      A governing body may call a "special meeting" -- i.e., a meeting not scheduled by ordinance, resolution, bylaw, or other formal measure. In that event, the governing body must give written notice at least twenty-four hours in advance to the members of the governing body and to "each local newspaper of general circulation and to each local radio or television station which has on file with the governing body a written request to be notified of such special meeting or of all special meetings." Wash. Rev. Code § 42.30.080. Whether this provision entitles online and other non-traditional news publishers to request notice is not clear, but you may want to make a request for notice anyway. An agency will have little incentive to deny this simple request and potentially spark a lawsuit. If the governing body accepts your request, you should renew it every year to ensure that you continue to receive notice. The notice for special meetings, which can be delivered by mail, fax or email, must give the time and place of the meeting and a description of "the business to be transacted."

      Minutes and Recordings

      Governing bodies of public agencies must record minutes of their meetings and make them available to the public upon request. See Wash. Rev. Code § 42.32.030. Some agencies make audio recordings of their meetings. If they choose to do so, the recording is a public record that you can access just like ordinary minutes.

      For information on your ability to use recording devices at public meetings, see Washington Recording Law.

      An Exception: Closed Meetings or Sessions

      The general rule is that all meetings of governing bodies of public agencies must be open to the public. If a governing body wants to hold a closed session, called an "executive session," it must identify a specific statutory exemption. Under the OPMA, a governing body may hold an executive session when it is dealing with one of thirteen subject-area exemptions found in Wash. Rev. Code § 42.30.110. The thirteen exemptions are for meetings dealing with the following topics:

      • matters affecting national security;
      • the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;
      • the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price;
      • negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;
      • financial and commercial information supplied by private persons to an export trading company;
      • complaints or charges brought against a public officer or employee, unless that officer or employee requests a public hearing;
      • the qualifications of an applicant for public employment or to review the performance of a public employee, but final actions must be taken at a public meeting;
      • the qualifications of a candidate for appointment to elective office, but any interview of the candidate and final action appointing a candidate to elective office must be carried out at public meeting;
      • discussion with legal counsel relating to agency enforcement actions or pending or potential litigation;
      • in the case of the state library commission or its advisory bodies, library network prices, products, equipment, and services, when such discussion would be likely to adversely affect the network's ability to conduct business in a competitive economic climate, but final action must be taken at a public meeting;
      • in the case of the state investment board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information;
      • proprietary or confidential nonpublished information related to the development, acquisition, or implementation of state purchased health care services; and
      • in the case of the life sciences discovery fund authority, the substance of grant applications and grant awards when public knowledge regarding the discussion would reasonably be expected to result in private loss to the providers of this information.

      These exemptions make it permissible for a governing body to close a portion of a meeting; they do not require it to do so. If a governing body is dealing with one of these enumerated subject areas, then it may hold a close session, but it also must meet the following procedural requirements:

      • The governing body must hold the executive session as part of a regular or special meeting.
      • Prior to convening the executive session, the presiding officer of the governing body must publicly announce the purpose of excluding the public from the meeting place and the time when the executive session will end.

      A governing body need not make available the minutes or recording of an executive session. For more information on the exemptions to the open meetings requirement, see the Open Government Guide: Washington.

      What Are Your Remedies If You Are Denied Access?

      If you believe that a governing body of a public agency has violated your rights, you may sue in state court. Under Washington law, any person may file a lawsuit for violations of the OPMA. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that a governing body satisfy its notice obligations, or that it provide access to minutes improperly withheld. In addition, if you go to court and win, the losing agency generally will have to pay your attorneys' fees and costs.

      In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the governing body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the governing body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

      Subject Area: 

      Open Meetings Laws in the District of Columbia

      Note: This page covers information specific to the District of Columbia. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.

      The District of Columbia Sunshine Act provides the public with a right of access to meetings of D.C. government bodies. It permits any member of the public to attend the meetings of "any department, agency, board or commission" of the District government. It also entitles you to inspect and copy transcripts of meetings, but it does not impose specific notice requirements on government bodies.

      What Meetings Are Covered?

      What Government Bodies Are Covered?

      The meetings of any department, agency, board, or commission of the District government, including meetings of the Council of the District of Columbia, are covered by the Sunshine Act. See D.C. Code § 1-207.42(a). For a list of D.C. government departments, boards, and agencies, with contact information, see the Directory of Agencies and Services. Meetings of the federal government are not covered by the D.C. Sunshine Act.

      What Is A Meeting?

      In addition to determining what government bodies are covered by the D.C. Sunshine Act, you'll need to figure out which of their gatherings or activities constitute an "meeting" for purposes of the law (and therefore must be open to the public). Under D.C. law, the term "meeting" applies to gatherings "at which official action of any kind is taken," including hearings. This broad definition includes most gatherings where a multi-member government body takes action on a public matter. But it probably does not cover informal gatherings of government officials to engage in deliberations, information-gathering, and administrative work. It also does not apply to purely social and ceremonial gatherings.

      In addition, the D.C. Sunshine Act does not apply to a government body's deliberations when it is acting in a judicial or quasi-judicial function. This means that, when a government body is acting like a judge in deciding the rights and obligations of specific individuals or groups, it may conduct its deliberations (i.e., reviewing the evidence and discussing possible findings) in private, assuming that it hears testimony and arguments in public and makes transcripts of hearings available to the parties and any interested persons. For example, one D.C. court held that, when a District agency was reviewing the denial of a gun permit to a D.C. resident, it properly conducted its deliberations in private. Jordan v. District of Columbia, 362 A.2d 114, 117-19 (D.C. 1976).

      The Sunshine Act does not specifically address whether telephone, email, and other electronic communications can constitute a "meeting" for purposes of the open-meetings requirements.

      What Are Your Rights?

      Attending Meetings

      The D.C. Sunshine Act gives "the public" the right to attend the meetings of D.C. government bodies. D.C. law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend the meetings covered by the Act.

      Notice

      The D.C. Sunshine Act does not impose on D.C. government bodies any obligation to give the public notice of their meetings. You should check the websites of the D.C. government bodies that you are interested in and contact them to see if you can sign up for a mailing list or other targeted mechanism for delivering notice.

      Minutes and Recordings

      D.C. government bodies must record and keep "written transcripts or transcriptions" of all open meetings. They must make these transcripts or transcriptions available to the public for inspection and copying at reasonable cost. See D.C. Code § 1-207.42(b) (link is to entire D.C. Code; click through to Title 1, Chapter 2, Subchapter VII, Part D, and then locate the specific provision).

      Closed Meetings or Sessions

      Unlike other federal and state open meetings laws, the D.C. Sunshine Act does not contain specific exemptions allowing a D.C. government body to close a meeting or session to the public.

      What Are Your Remedies if You Are Denied Access

      Unfortunately, D.C. law is not clear on what you can do if you are denied access to a public meeting. The Sunshine Act does not say that members of the public may bring a lawsuit for violations of its requirements; it only says that resolutions, rules, acts, regulations, and other official actions won't be effective unless enacted at an open meeting. A court could conceivably grant you the right to bring a lawsuit to prevent a meeting from being closed, but this is not certain.

      In any event, a lawsuit usually is a slow and expensive solution, so it is generally better to resolve a dispute without going to court. In the event that you are denied access to a meeting, you should contact the government body in question and indicate that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the governmental body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.

      Jurisdiction: 

      Subject Area: 

      Identifying Federal, State, and Local Government Bodies

      When seeking government information, it is important for you to be able to distinguish between federal, state, and local government bodies. The situation is more complex than it might otherwise seem because of the U.S. system of federalism. The concept of federalism is complicated, but it essentially means that the U.S. federal government shares power with state and local governments that exercise political authority over particular geographical regions. Thus, there may be three (and sometimes even more) government bodies that exercise authority or regulate a particular activity. Fortunately, there are some simple steps you can take to determine whether you are dealing with a state, federal, or local government body:

      • Check the name of the government body: Often, the name of a government body will indicate what level of government it belongs to. Many federal agencies and executive departments have names that contain "U.S." or "Federal," such as the Federal Communications Commission, the Federal Election Commission, the U.S. Social Security Administration, and the United States of America Department of Commerce. At the state level, many state departments, agencies, boards, and commissions have names that contain the word "State" or the name of the particular state, or both, such as the Massachusetts Department of Elementary and Secondary Education, the Virginia State Corporation Commission, the Florida Department of Environmental Protection, and the Illinois State Board of Education. Finally, at the local level, government bodies will often have names that include the words "county," "city," "township," "town," "district," and the like. For example, you will find the Seattle City Council, the Los Angeles County Board of Supervisors, the McHenry County Board, the Whitpain Township Planning Commission, the Palmyra, NY Town Zoning Board, and the District School Board of Collier County. In most cases, paying attention to the name of the government body you are dealing with will tip you off to whether it is a federal, state, or local government entity.

      • Look closely at what the government body does: If you have access to a government body's website or some other source of information about it, then you can look at what it does, who is affected by it, and over what geographical region it has authority. There is no precise litmus test here, but you can generally figure out whether the government body has a nationwide, statewide, or local impact, and this will ordinarily correspond to its place in federal, state, or local government, respectively. This will be most obvious with local government bodies that deal with a particular issue (like zoning, parking, or recycling) in a particular town or township.

      • Consider location: Sometimes, knowing where a government body is headquartered or located is a good gauge of whether it is a federal, state, or local body. For instance, if a government body is housed in your town or city hall, or in a building with other town, city, or county offices, then it is a good bet that it is a local government body. State government bodies will often be located in your state capital, but this is not always a great indicator because federal offices, agencies, and personnel may be located in major cities like the state capital. (Strictly speaking, federal offices could also be located in small towns, so keep in mind the other factors discussed above.) The main headquarters of most federal agencies and other federal government bodies are in Washington, D.C.

      • Pick up the phone: The surest way of determining whether a particular government body is part of the federal, state, or local government is to call and ask. While you're at it, you might ask more specifically whether the government body is subject to federal, state, or local open records and open meetings laws. Ask whomever is helping you to be specific.

      Special Considerations for Courts

      There are federal, state, and local court systems in every state. For example, if you are in New York City, there is a federal district court (the United States District Court for the Southern District of New York), a state trial court of general jurisdiction (the New York Supreme Court, New York County), and city courts (like the New York City Civil Court and the New York City Criminal Court). These different court systems may have different rules regarding access to court proceedings and court records. See the Access to Courts and Court Records section for details.

      The federal court system is split into three levels: the U.S. District Courts, the U.S. Courts of Appeal, and the U.S. Supreme Court.

      The name of the court will usually tip you off to whether you are dealing with a federal court. The federal trial courts will have names including "The United States District Court for . . .," such as the United States District Court for the Southern District of New York, the United States District Court for the Middle District of Florida, or the United States District Court for the District of New Jersey. The federal appellate courts will have names including "The United States Courts of Appeals for the ___ Circuit," such as the United States Court of Appeals for the Ninth Circuit, the United States Court of Appeals for the First Circuit, and the States Court of Appeals for the Federal Circuit. Of course, you shouldn't have any trouble identifying the Supreme Court of the United States as a federal court. In addition, federal courts will be located in a courthouse bearing the name "United States Courthouse," such as the John Joseph Moakley United States Courthouse in Boston, the Phillip Burton United States Courthouse in San Francisco, and the Thurgood Marshall United States Courthouse in New York. For additional information about the federal courts, see the U.S. Courts website.

      If you are not dealing with a federal court, then in all likelihood you are dealing with a state court. There is great diversity in the names of the state courts, both at the trial and the appellate level. Luckily, an excellent Wikipedia article lists the names of and provides links to the trial, intermediate appellate, and highest courts of all fifty states, the District of Columbia, and the U.S. territories and protectorates. If you want to confirm the accuracy of this information, you could check it against State Court Sites from an organization called State and Local Government on the Net. (Incidentally, this website can help you find the websites of a huge number of federal, state, and local government bodies, in addition to courts.)

      As noted, local courts exist in many counties, cities, and towns. You'll probably know them by their name ("county court," "city court," and the like) and by their location in the county courthouse or similar local building. You can always call the clerk of the court or contact a local lawyer for clarification.

      Jurisdiction: 

      Access to Congress and the President

      If you are interested in information contained in records retained by the President of the United States or the U.S. Congress, you should be aware that neither Congress nor the President are covered by the Freedom of Information Act (FOIA). Instead, both the President and Congress have their own set of rules for public access to their records and have traditionally allowed substantial public access to their proceedings and documents.

      Choose one of the links below to get started:

      Subject Area: 

      Access to Congress

      Congress is not subject to the Freedom of Information Act (FOIA). Nevertheless, both the U.S. House of Representatives and the U.S. Senate have enacted their own rules and have allowed substantial public access to their proceedings and records. You can obtain access to congressional debates and other proceedings, but you need to obtain gallery passes from the office of your Senator or Representative. In addition, networks like C-Span televise and archive a large percentage of floor debates. You also may observe congressional committee meetings, notice of which is posted online. The congressional press galleries offer increased access and support services to members of the press who obtain the proper credentials, but the galleries place limitations on who can qualify for credentials. Finally, the U.S. government's own online portals provide congressional information and documents, and private organizations have developed fantastic tools for finding and organizing this information. We provide links to many of these resources below.

      Physical Access to the Main Galleries

      The galleries of the House and the Senate are open to the public whenever either body is in session, but gallery passes are required. You can obtain gallery passes from the office of your Senator or Representative (usually, any member can provide passes to both houses). There are three Senate office buildings and three House office buildings; to find the Senators and Representatives for your state, visit the Senate directory or the House directory.

      Under limited circumstances, the galleries may be closed to the public. When the Senate discusses any business which, in the opinion of a Senator, require secrecy, the Presiding Officer must clear the galleries and keep the doors closed for the duration of the discussion. See Senate Rule XXI. The House galleries may be closed when the Speaker, a member, a delegate, or a resident commissioner indicates that he or she will deliver communications that ought to be kept secret, or when the President sends confidential communications to the House. See House Rule XVII, para. 9 (scroll down).

      Access to Committee Meetings

      Public access to congressional committees is an important part of government transparency. Committee meetings and hearings generally are open to the public, but members of a committee may vote to close a hearing or meeting under limited circumstances. See Senate Rule XXVI(5)(b) and House Rule XI(g)(1)(2).

      Senate Committees

      As a general rule, Senate committee meetings are open to the public. Senate committees may close a meeting if the matter to be discussed would:

      • disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of the foreign relations of the United States;
      • relate solely to matters of committee staff personnel or internal staff management or procedure;
      • tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt, or will represent a clearly unwarranted invasion of the privacy of an individual;
      • disclose the identity of any informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement;
      • disclose information relating to the trade secrets of financial or commercial information under certain circumstances;
      • divulge matters required to be kept confidential under other provisions of law or government regulations.

      Senate committees must give public notice of their hearings at least one week in advance. The notice must give the date, place, and subject matter of the hearing. See Senate Rule XXVI(4)(a). The Senate Rules do not specify where committees must post this notice, but as a matter of practice they will do so on their websites and in the Congressional Record. For links to Senate committee websites, see the Senate Committee Portal.

      Finally, Senate committees and subcommittees must make publicly available through the Internet a video recording, audio recording, or transcript of any meeting not later than twenty-one business days after the meeting occurs. See Senate Rule XXVI(5)(e)(2)(A).

      House Committees

      As a general rule, House committee hearings and meetings are open to the public. House committees may vote to close a meeting or hearing if disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade, or incriminate any person, or otherwise would violate a law or rule of the House. They must announce the date, place, and subject matter of hearings to the public at least a week in advance in the Daily Digest and on their websites. For links to House committee websites, see the House Committee Portal.

      Additional Resources for Committees

      • The Congressional Directory provides a listing of all currently functioning committees in both the House and Senate. Clicking on each committee will bring you to links to the committee's homepage, any subcommittees, and a schedule of upcoming meetings. Transcripts of hearings are usually available from the committees' websites.
      • Capitolhearings.org, a service from C-Span, provides live broadcasts of congressional committee hearings.

      Media Coverage

      Members of the media in possession of proper press credentials are allowed access to the press galleries. Each house administers three galleries, one for press (meaning newspapers), one for periodical press, and one for radio and television. These galleries provide increased access to lawmakers and their staffs, and include workspaces and telephones for press use. Gallery staff will assist reporters and answer phones to take messages for the press while congressional proceedings are going on. The press is also given access to official transcripts, notes, and logs of congressional proceedings, and when lawmakers want to issue press releases, copies are generally handed out to everyone in the press gallery.

      Senate Galleries

      The Senate's three galleries are:

      House Galleries

      The House of Representative's three galleries are:

      Each has its own credentialing process. For example, the Senate Press Gallery requires that the reporter reside in Washington. The Senate Periodical Press Gallery requires that the periodical in question provide coverage of Washington issues on a continuing basis. A common requirement is that the reporter's organization not be engaged in lobbying activities. The House Press and Radio-Television Galleries advise applicants to go through their Senate counterparts for membership. In contrast, the House Periodical Press Gallery credentials its own members as well as its Senate counterpart, and maintains a list of recognized periodicals. See each gallery's web page for their particular applications and restrictions.

      The Periodical Press Galleries may be the closest fit for most online publishers. The House application is available online and states that the process can take up to six months. See its Rules and Regulations for details.

      The procedures for the Senate Periodical Press Gallery are a bit more ambiguous. It provides two similar but not identical "Rules" pages. One instructs applicants to apply through the House Periodical Press Gallery, and the other instructs applicants to apply through the Senate.

      The Open House Project has an excellent entry that details the procedure bloggers and online journalists have gone through to obtain membership in the congressional press galleries. It also describes the battles that have been fought to secure the right of online media to gain access to Congress, including the story about WorldNetDaily's eventually successful fight for credentials.

      Access to Congressional Documents

      Because Congress is not an agency, congressional documents are not subject to the disclosure requirements of the Freedom of Information Act (FOIA). For details on FOIA, see the Access to Records from the Federal Government section.

      As a matter of practice, however, most documents generated by Congress are publicly available. On occasion, Congress and its committees may designate certain documents, reports, and transcripts confidential or classified. See Goldand v. Central Intelligence Agency, 607 F.2d 339, 346 (D.C. Cir. 1978), which affirms that "Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, longstanding practice, and current congressional rules." For these documents, there is no established method for gaining access to them, and one must request declassification and release of the document from Congress directly.

      The vast majority of congressional documents are readily available to the public online. There are a host of extremely useful online resources for accessing transcripts of floor debates, committee hearings, and voting records. Disclosures by members of Congress relating to funding and expenditures, drafts of proposed legislation, and congressional reports are also easily accessible online. Below is a list of some of these resources:

      Government Resources

      • The Library of Congress’s THOMAS - This official legislation tracker from the U.S. Library of Congress (LOC) features the progress of pending and completed legislation. The LOC’s website also contains a number of other resources for congressional information.
      • The Congressional Record - The Congressional Record, published daily when Congress is in session, is the official record of the proceedings and debates of the United States Congress. It includes the accounts of debates, votes, legislation, and committee meeting announcements. Records are available from 1994 on.
      • Congressional Reports - Congressional reports originate from congressional committees and deal with proposed legislation and issues under investigation. The database for the current Congress is updated irregularly, as electronic versions of the documents become available. Reports are available from the 104th Congress (1995) and on.
      • Congressional Hearings - Hearings released to the GPO are searchable and browseable on GPO Access. Reports are available from the 104th Congress (1995) and on.
      • U.S. House of Representatives House Members' Public Disclosures - Members, officers, and staff of the U.S. House of Representatives are required by certain House Rules and federal statutes to file official documents on travel, income, gifts, etc., and to make this information available to the public. These documents are filed with the Clerk of the House.

      Resources From Private Organizations

      • Opencongress.org - Another bill tracker that also contains biographical information on individual Representatives and Senators and committee information. It also features legislation-oriented blogs and news content.
      • The Sunlight Foundation - A foundation founded in January 2006 with the goal of using Internet technologies to help citizens learn more about what their elected representatives are doing and ensure greater transparency and accountability in government. On its website, the foundation provides a list of "Insanely Useful Web Sites" for accessing, tracking, and organizing government information and legislative data.
      • LOUIS - A beta release of the Sunlight Foundation that allows users to search seven categories of legislative and executive documents: Congressional Reports, Congressional Record, Congressional Hearings, Federal Register, Presidential Documents, GAO Reports, and Congressional Bills & Resolutions.

       

      Subject Area: 

      Access to Presidential Records

      If you are looking for information contained in presidential records, there are two main sources you can consult - the Federal Register for the public papers of the President and the Archivist of the United States for records available to the public through the Presidential Records Act.

      The easiest way to get presidential records is through the Federal Register, which makes a collection of official presidential documents available to the public. Every six months the Federal Register publishes a compilation called the Public Papers of the President, which includes documents such as executive orders, proclamations, memoranda, messages to Congress, speeches and press conferences.

      The Archivist of the United States makes presidential records available to the public through the Presidential Records Act. Although presidential records are not subject to public access requests during the President's term of office, the Presidential Records Act makes presidential records available to the public five years after the President leaves office. The Presidential Records Act established that presidents do not own their White House records as personal property but rather the U.S. Government has "ownership, possession and control" over the records. The Archivist of the United States has "an affirmative duty to make such records available to the public" through the Freedom of Information Act (FOIA) no later than five years after the President leaves office.

      Who Can Request Records

      • Any person can access the Federal Register online.

      • Any person can file a FOIA request to gain can access to presidential records under the Presidential Records Act.

      What Records Are Covered

      • The Federal Register makes the Public Papers of the President available to the public, including proclamations, executive orders, messages to Congress, speeches, press conferences and other documents such as the President's schedule of meetings released by the Office of the Press Secretary.

      • Under the Presidential Records Act, you can access documentary materials "created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President." According to the definitions section of the Act, this includes books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films and motion pictures.

      How to Request Records

      What Are Your Remedies if You are Denied

      • If your request for records is denied in whole or in part, you may appeal the denial of access under the Presidential Records Act. The National Archives and Records Administration outlines an administrative appeal process in its NARA Code of Federal Regulations 36 CFR 1270.42. The basic procedure is:
        1. File a written appeal with the appropriate presidential library within 35 days of the denial
        2. Explain in the appeal the specific reasons you believe you should have access to the records
        3. The appropriate presidential library director then has 30 days to consider the appeal and to respond in writing with the basis for the determination.
        4. The director's decision to withhold records is final and is not subject to judicial review.
      • You may also choose to file a lawsuit in federal court. See American Historical Association v. National Archives and Records Administration, 310 F.Supp.2d 216 (2004).

      Restrictions On Your Ability to Access Presidential Records

      • You can not request access to presidential records during the President's term of office. FOIA does not apply to offices within the Executive Office of the President whose function is to advise and assist the President. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980) (noting that the term “agency” does not include “the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”) However, after a President leaves office, the Presidential Records Act allows access to these records. So, for instance, right now, you cannot request access to President Bush's presidential records through FOIA. But, 5 years after President Bush leaves office, the Presidential Records Act would allow you to access those same records through FOIA.

      • A former or incumbent president may restrict access to presidential records for up to twelve years if he claims an exemption based on section 2204 of the Presidential Records Act. These six exemptions are for national security information, information relating to appointees to Federal office, information specifically exempt from disclosure by statute, trade secrets and confidential business information, confidential conversations between the President and his advisers, and files which if disclosed would constitute a "clearly unwarranted invasion of privacy." 44 U.S.C. s.s. 2204(a)(1)-(6). After twelve years, these exemptions no longer apply. The regular exemptions under FOIA may apply, however, so you should review the section on FOIA Exemptions before concluding that you are automatically entitled to the information you seek.

      • In November of 2001, President Bush issued Executive Order 13233 - Further Implications of the Presidential Records Act which gives current and former presidents and vice presidents authority to request that the release of their presidential records be withheld or delayed.

      Subject Area: 

      Access to Courts and Court Records

      If you’re hunting for information, consider a visit to the courthouse, where you can sift through resource-rich court records or attend (sometimes colorful) court proceedings.

      Courts are centers for dispute resolution. They are public forums in which societal norms and values, as reflected in laws, are used to address and correct wrongs. While a number of laws govern the court system, none is so deeply-ingrained as the presumption that court proceedings should be open to the public.

      If you are wondering how attending court proceedings or combing through court records might be valuable to you, here are several great reasons to consider acquiring -- and publishing -- information available from the courts:

      You’re interested in reporting on justice or the functioning of the court system

      Some believe that courts dispense justice; others believe that the law is divorced from justice. One good way to explore this issue is by attending a trial. Non-traditional journalists have already had highly visible success in covering court proceedings, as seen in the 2007 trial of Lewis “Scooter” Libby. A blogger from Firedoglake.com gained press credentials, live-blogged the trial, and provided the public with what the New York Times described as the “fullest, fastest public report” that traditional reporters used to fact check their stories. Salon applauded Firedoglake for producing “insightful” and “superb” coverage “that simply never is, and perhaps cannot be, matched by even our largest national media outlets.” In this case press credentials were necessary due to the intense public interest, but usually they’re not needed for courtroom access.

      If you are interested in reporting on justice or the functioning of the court system, you should review the sections on access to federal court and state court proceedings for guidance on how to attend court proceedings. You may want to consult court records to get a better understanding of what is happening in court. For details, see State Court Records and Federal Court Records.

      You enjoy publishing a good story

      Attorneys engage in storytelling to win the case for their clients. Conflicts are inherently interesting, and the stories presented at trial tend to offer different interpretations of the truth. Tensions run high, and you may find yourself caring deeply about a previously unknown issue. As a result, courtroom dramas can make compelling subjects for blog posts and other website content. You need merely look at the Citizen Media Law Project Blog for evidence of this and the many fascinating "stories" we cover in the Legal Threats Database.

      If you enjoy publishing a good story, you should visit the page on Access to the Jury and Trial Participants to find out how to properly contact court participants such as judges, lawyers, parties, witnesses, and jurors to get the juicy details that will bring your story to life.

      You have a pre-existing interest in one of the parties in a court proceeding

      If a certain person or institution interests you, following their footprints in court often yields a wealth of information. For example, as part of their coverage of the 1972 election, the Washington Post sent a young journalist on a low level assignment to attend the arraignment of five men who had been arrested for breaking into the Democratic National Committee’s headquarters. As the journalist paid close attention to the proceedings, he quickly realized that there were more questions that needed investigating. If Bob Woodward hadn’t attended that seemingly minor court proceeding, the Watergate story might never have been broken.

      Besides the obvious value of attending court proceedings, there is a wealth of information available in court records about individuals, corporations, and other organizations that can further aid your investigations. See the sections on access to federal and state court records for guidance on how to access this information.

      You enjoy historical research

      Court records can be immensely helpful to historians in two major ways: specific court cases can illuminate a certain aspect of history, and court records in aggregate can show statistical trends that highlight social, cultural, or structural changes. For genealogists, court records can also reveal family relationships, places of residence, occupations, physical or personality descriptions, or naturalization dates. Refer to Genealogy.com and Ancestry.com for more information on how mine court records for information on your family.

      If you enjoy historical research, you will find a wealth of information in court files, a growing percentage of which are now available electronically. The sections on access to federal and state court records should help you find the right place to look for the information you need.

      Where to Begin

      Now that we've whetted your interest in court proceedings and records, it's time to do some research so that you will be able to get access to what you need. Before you jump into the materials in this guide, however, you should first determine whether the documents and/or proceedings you are interested in are associated with the federal court system or a state court system. The the page on Identifying Federal, State, and Local Government Bodies should help, as will a preliminary visit to the courthouse.

      Once you've figured out what information you want and where it is located, you should browse the following sections to get a full understanding of your right to access court records and court proceedings:

      Subject Area: 

      Access to State and Federal Courts

      Federal Courts

      There are two ways in which you can get information from the federal court system, through attending court proceedings and through accessing court records. For more information, visit the following pages:

      State Courts

      State courts have their own sets of rules and procedures. For more information, visit the following pages:

      • State Court Proceedings - Describes your right to attend state court proceedings.

      • State Court Records - Describes your right to access state court records and provides information on why your request may be denied, and how to appeal a denial.

      Real-Time Coverage of Court Proceedings

      If you are considering providing live coverage of court proceedings through Twitter, live-blogging, or other social media tools, you will want to read the section on Live-Blogging and Tweeting from Court. Various court rules may affect your ability to provide real-time coverage of court proceedings.  These pages provide practical advice on how to avoid legal trouble if you intend to provide live coverage from inside the courthouse, including interviews with journalists and bloggers who have navigated these waters.

      Subject Area: 

      Access to Federal Court Proceedings

      Federal Criminal Proceedings

      Trial Proceedings

      As a member of the public, you have a right to attend criminal trials. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearings, the jury selection process, and sentencing and plea procedures.

      However, like the general public, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury, or because a child is testifying, and the presence of the public would cause substantial psychological harm to the child or would result in the child’s inability to effectively communicate.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. Federal Rule of Criminal Procedure 6(d); see also Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986).

      However, you can speak with witnesses who appear before the grand jury, at least about their own testimony. See Butterworth v. Smith, 494 U.S. 624, 635-36 (1990). Note that witnesses are generally precluded from disclosing the testimony of other witnesses.

      Other Proceedings and Conferences

      In addition to grand jury proceedings, there are a few other court proceedings and conferences traditionally have been closed to the public. These include “side-bar” or “in-chambers” conferences between counsel and the judge, and plea-bargaining sessions between between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You may be able to attend criminal juvenile proceedings in federal court. Federal juvenile proceedings, unlike those in many state courts, are not completely closed by law. The court weighs the interests of the juvenile and the public on a case-by-case basis. See United States v. A.D., 28 F.3d 1353, 1361-62 (3d Cir. 1994). However, you should be aware that closure is still the norm in these cases.

      Federal Civil Courts

      You also have a right to attend civil trials. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984). Judges in civil courts may close the courtroom to the public only to serve specific interests that override the public's interest in access, and they only may do so if the closure is narrowly tailored to protect those interests. For example, you may be excluded from a courtroom if confidential commercial information, like a trade secret, would be revealed.

      Additionally, some elements of the civil judicial system traditionally have been closed to the public. These include “side-bar” or “in-chambers” conferences between counsel and the judge, and settlement or other arbitration meetings between the parties. In addition, pretrial depositions are not public.

      Bankruptcy Court

      You should be able to attend most bankruptcy court proceedings. The judge may close the courtroom to the public only if a party seeking to close the proceeding has an overriding interest, such as the protection of trade secret information, that is likely to prejudiced and the closure is narrowly tailored to protect that interest.

      Other Federal Courts

      Court of International Trade

      You should be able to attend trials on the merits. See Rule 77(b). Other proceedings may be conducted by the judge in his or her chambers; the public would normally be excluded from these proceedings.

      Subject Area: 

      Federal Court Records

      You can inspect and copy judicial records and documents filed in federal court. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). However, your right of access is not absolute, and court documents may be sealed or the records may otherwise be restricted by the law (for example, to protect personal privacy or trade secrets).

      Documents related to cases are generally collected in a case file. A case file includes the documents filed by the litigants or issued by the judge, a docket sheet that lists such filings, and transcripts of court proceedings. However, a case file does not include other documents associated with a case, such as materials uncovered through discovery but not filed with the court, trial exhibits that were not admitted into evidence, and notes written by the judge or other court personnel.

      Online Access to Court Records

      You can use Public Access to Court Electronic Records (PACER), an electronic filing system, to access federal court documents. As a member of the public, you can access case and docket information from Federal Appellate, District, and Bankruptcy courts via the Internet. PACER has a relatively complicated, page-based fee system that is described in detail on Overview and FAQ pages.

      Using PACER, you can access the following case file documents:

      • The names of all the parties and participants, including judges, attorneys, and trustees
      • A compilation of case-related information, such as cause of action, nature of suit, and dollar demand
      • The docket listing the case events by date
      • A claims registry
      • A listing of new cases each day
      • Appellate court opinions
      • Judgments or case status
      • Types of documents filed for certain cases
      • Images of documents

      Although PACER allows you to access the above information from all federal courts, each court maintains its own database. If you have questions about the availability of certain documents, you will need to contact the specific federal court for more information.

      Grounds for Denial

      You may be denied access to a court record for a variety of reasons, including data availability, lack of specificity in your request, and the potential for invasion of privacy due to personal or highly sensitive information. Additionally, courts may seal criminal records when disclosure would threaten the defendant's right to a fair trial.

      Your Remedies if You Are Denied Access

      You have several options available if your request for access to court records is denied. First, understand the specific grounds for denial. If the denial was based on insufficient information about the documents, restructure your request by including the information necessary to locate the records. If the denial was based on privacy issues, ask whether the records can be made available after personal data has been redacted.

      If the denial was based on a judicial order sealing the records, you may contest the court order. In order to do so, you will need legal assistance in filing an opposition to the court's order and requesting a hearing to open the sealed records. Additionally, the First Amendment Project has a series of steps to follow when you are faced with closed records.

      Subject Area: 

      State Court Proceedings

      All fifty states and the District of Columbia allow public access to their court proceedings. As with federal courts, state court proceedings are presumed to be open to the public in most cases. However, some variation exists on a state-by-state basis. Choose your state from the list below for state-specific information on accessing state court proceedings. (Note that this guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

      Subject Area: 

      Access to Arizona Court Proceedings

      Note: This page covers information specific to Arizona. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Arizona state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Arizona judiciary's website to find the locations, phone numbers, and websites for the state's Superior Courts, Courts of Appeal Division I and Division II, and Supreme Court. This page focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This includes the preliminary hearing and the jury selection process, but might not include other pre-trial proceedings. The Arizona state constitution also provides a right of access to court proceedings. See Ariz. Const., art. 2, § 11 and art. 6, § 17; Ridenour v. Schwartz, 179 Ariz. 1, 3 (1994).

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      Arizona Rule of Criminal Procedure 9.3 provides specifically that “[a]ll proceedings shall be open to the public, include representatives of the news media, unless the court finds, upon application of the defendant, that an open proceeding presents a clear and present danger to the defendant's right to a fair trial by an impartial jury.” See also Phoenix Newspapers v. Jennings, 107 Ariz. 557, 560 (1971). Rule 9.3 also requires that a “complete record” of any closed proceedings be kept and made available to the public following the completion of the case.

      If the trial court closes a proceeding to which there is a First Amendment right of access, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See A.R.S. § 13-2812.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Arizona state courts. See Lewis R. Pyle Memorial Hosp. v. Superior Court, 149 Ariz. 193, 197 (1986) (“There is no doubt that there exists a common law right of access to civil trials.”); Ariz. R. Civ. P. 43(f) (“In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence.”). A civil proceeding may only be closed if there is "a compelling governmental interest and [the closure is] narrowly tailored to serve that interest." Ridenour, 179 Ariz. at 3.  But if the closure is only temporary, "it may be sustained if it is reasonable and neutral." Id.

      Juvenile Court Proceedings

      You may be able to attend certain kinds of juvenile proceedings in Arizona.

      Arizona Rule of Juvenile Procedure 19 provides that “[d]elinquency, incorrigibility, diversion involving delinquent acts and transfer proceedings shall be open to the public” unless the court makes a written finding that closure is necessary to protect the best interests of a victim, the juvenile, a witness, or the state, or that there is “a clear public interest in confidentiality.” Upon request of any person that the proceeding be closed, the court must hold a hearing prior to the proceeding to consider the positions of the parties. See Rules of Procedure for the Juvenile Court.

      A.R.S. § 8-525 provides that court proceedings relating to dependent children, permanent guardianship, termination of parental rights, and child abuse and neglect cases that have resulted in a fatality or near fatality are open to the public. However, “[f]or good cause shown,” the court may order any proceeding to be closed to the public. The court must consider a variety of factors, include the child’s best interests, the privacy rights of the parties or other individuals, the agreement of the parties, and the preferences of a child over 12. If a hearing is open, attendees are still prohibited from disclosing identifying information about the child, the child’s siblings, parents, and certain other individuals. See also Ariz. R. Juv. P. 41.

      Finally, emancipation hearings are open to the public unless the court finds in writing that closing the hearing is necessary “to protect a party, or a clear public interest in confidentiality.” Ariz. R. Juv. P. 92.

      Jurisdiction: 

      Subject Area: 

      Access to California State Court Proceedings

      Note: This page covers information specific to California. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in California state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. See the Courts page on the California Courts website for locations, phone numbers, and websites for the California Superior Courts, Courts of Appeal, and Supreme Court. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have the same First Amendment right to attend all stages of criminal trials as you do in federal court. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This includes the preliminary hearing and the jury selection process.

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      As in federal court, you will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. Attempting to listen to or observe the proceedings of a grand jury is a misdemeanor. Cal. Penal Code 891.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      Your access to California juvenile proceedings is strictly limited. You will not be admitted to a juvenile court hearing unless either the minor and her parent/guardian requests that the hearing be public or the minor is accused of one of a listed group of serious felonies, such as murder, arson, or rape. Cal. Welf. & Inst. Code 676a.

      Even if the minor and her parent consent or the minor is accused of one of those serious crimes, you will still be excluded if the minor is accused of one of several sexual assault-like crimes and the victim requests the hearing be closed, or if the victim was under 16 years old at the time of the offense. Cal. Welf. & Inst. Code 676b.

      Civil Proceedings

      In general, you can attend civil trial proceedings because the general public has a First Amendment right of access to civil trials. See NBC Subsidiary, Inc. v. Superior Court, 20 Cal. 4th 1178 (1999) (type in citation to retrieve opinion).

      Judges may decide to close civil trials under certain conditions. If a judge contemplates closing the trial proceeding, she must provide notice to the public of the anticipated closure and hold a hearing to hear any arguments about the proposed closure. The judge can close the trial proceeding if she expressly finds after the hearing that (i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest. Id., at 1181-1182.

      Additionally, you may not be able to access portions of the trial proceeding. You will not have access to depositions, the “side-bar” or “in-chambers” conferences between counsel and the judge, or settlement or other arbitration meetings between the parties. You will also likely not be able to attend mental competency hearings, unless one of the parties involved asks that the hearing be open. See Cal. Welf. & Inst. Code. 5118.

      Other State Courts

      Family Court

      You may be able to attend most court proceedings, however note that a judge may close a trial when she "considers it necessary in the interests of justice and the persons involved." Cal. Family Code 214.

      Jurisdiction: 

      Subject Area: 

      Access to District of Columbia Court Proceedings

      Note: This page covers information specific to the District of Columbia. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in D.C. courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the judiciary's website to find the locations, phone numbers, and websites for the District's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have the same First Amendment right to attend all stages of criminal trials as you do in federal court. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980); see also Kleinbart v. United States, 388 A.2d 878 (D.C. 1978). This includes the preliminary hearing and the jury selection process.

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See District of Columbia Superior Court Rules for Criminal Procedure 6(d)(1).

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      Juvenile proceedings in the District of Columbia are closed. D.C. Code § 16-2316(e). You may be able to attend if the judge finds that there is a "reasonable assurance that the admission of the press will be consistent with the protection of a juvenile respondent's anonymity." In re J.D.C., 594 A.2d 70, 75 (D.C. 1991). Thus, your attendance will be contingent on your agreement not to divulge information identifying the child or members of the child's family involved in the proceedings. D.C. Code § 16-2316(e)(3).

      Civil Proceedings

      D.C. courts have not directly taken a position on the openness of civil proceedings, but seem to have assumed there is a presumptive First Amendment right of access. See Mokhiber v. Davis, 537 A.2d 1100, 1110 (D.C. 1988).

      Other State Courts

      Family Court

      You will be excluded from Family Court proceedings if either party requests the hearing be closed to the general public. The judge may also close the proceedings on her own initiative. D.C. Code § 16-2344.

      Jurisdiction: 

      Subject Area: 

      Access to Florida Court Proceedings

      Note: This page covers information specific to Florida. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      This page focuses on your ability to access state court proceedings in Florida. You may wish to also familiarize yourself with the Florida Bar Association's Reporter's Handbook to better understand your rights of access to the Florida state court system.

      Criminal Proceedings

      Trial Proceedings

      You have the same First Amendment right to attend all stages of criminal trials as you do in federal court. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980); See also Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 3 (Fla. 1982). This includes the preliminary hearing and the jury selection process.

      You may be denied access to the courtroom if there would otherwise be a serious and imminent threat to the administration of justice. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury. However, if the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the accused and closure must be an effective way to protect the accused's rights. There must be no alternative available other than change of venue. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986); Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1982).


      Grand Jury Proceedings

      As in federal court, you will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Fla. Stat. 905.24.


      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.


      Juvenile Court Proceedings

      You may be able to attend juvenile proceedings in Florida. Juvenile proceedings must be open to the public unless the judge determines the public interest and the welfare of the child are best served by closure. Fla. Stat. 985.035.

      Civil Proceedings

      There is a "strong presumption of openness" for civil trials in Florida. Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118-19 (Fla. 1988). A judge will only hold a closed civil trial in limited circumstances. For example, you may excluded from the trial to keep trade secrets safe, to protect national security, and to avoid substantial injury to innocent third parties, such as children in a divorce case. Moreover, the trial court will only close the proceedings if there is no reasonable alternative to closure and the closure is the least restrictive form necessary.

      Other State Courts

      Family Court

      You may be able to attend some Family Court proceedings. Custody and other dependency proceedings are presumptively open, unless the judge determines the public interest or the welfare of the child is best served by closing the hearing. Fla. Stat. 39.507(2). However, adoption proceedings in Florida are closed, Fla. Stat. 63.162, as are proceedings to terminate parental rights, Fla. Stat. 39.809(4).

      Jurisdiction: 

      Subject Area: 

      Access to Georgia Court Proceedings

      Note: This page covers information specific to Georgia. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Georgia courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Georgia judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend all stages of criminal trials. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980); see also Rockdale Citizen Publishing Co., Inc. v. State, 463 S.E.2d 864, 866-67 (Ga. 1995). This includes the preliminary hearing and the jury selection process.

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury. If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13-15 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You will likely not be able to attend juvenile proceedings in Georgia, as they are presumptively closed. O.C.G.A. 15-11-78(1). However, you may able to attend if the juvenile is accused of certain serious offenses, such as arson, attempted murder, kidnapping, and trafficking in illegal drugs or if the juvenile has been found delinquent previously. You also have the right to challenge any denial of access by arguing that the state's or juveniles' interest in a closed hearing is overridden by the public's interest in a public hearing. See Florida Publishing Co. v. Morgan, 322 S.E.2d 233, 238 (Ga. 1984).

      Civil Proceedings

      You will likely be able to attend civil trials in Georgia. The United States Court of Appeals for the Eleventh Circuit, which includes Georgia, has ruled that there is a "presumption of openness to civil proceedings." Wilson v. American Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985). If a trial court denies public access to the civil proceeding, the denial must be necessitated by a compelling interest and must be narrowly tailored to that interest.

      Jurisdiction: 

      Subject Area: 

      Access to Illinois Court Proceedings

      Note: This page covers information specific to Illinois. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      This page focuses on your ability to access state court proceedings in Illinois. You may wish to also familiarize yourself with the Illinois State Bar Association's Media Law Handbook to better understand your rights of access to the Illinois state court system.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend all stages of criminal trials . See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This includes the preliminary hearing and the jury selection process.

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury. You may also be excluded from a trial alleging certain sexually based offenses when a minor victim testifies. In Illinois, the judge has the ability to close the courtroom to everyone but the media during such testimony. 725 Ill. Comp. Stat. 5/115-11. Note that at least one judge has found that bloggers do not meet the definition of media in a similar context in juvenile proceedings, see the discussion on juvenile proceedings below.

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. 725 Ill. Comp. Stat. 5/112-6.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      It is not clear whether you will be able to attend juvenile procedures in Illinois. Although general public is excluded from all hearings in juvenile court, the members of the news media are allowed to attend. 705 Ill. Comp. Stat. 405/1-5(6). However, at least one juvenile court judge has held that bloggers are not members of the news media for purposes of this law. See the Citizen Media Law Project's blog on Bloggers Are Not Journalists, Illinois Juvenile Court Judge Declares. Note that even if you are allowed to attend the proceeding, your attendance may be contingent on your agreement not to divulge information identifying the child.

      Civil Proceedings

      You will likely be able to attend civil proceedings, which are "open to the public ... by force of tradition." A.P. v. M.E.E., 821 N.E.2d 1238, 1245 (Ill. App. Ct. 2004).

      Jurisdiction: 

      Subject Area: 

      Access to Indiana Court Proceedings

      Note: This page covers information specific to Indiana. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Indiana state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Indiana judiciary's website to find the locations, phone numbers, and websites for the state's Trial Courts, Courts of Appeal, and Supreme Court. Additionally, the Indiana judiciary also has a terrific guide for the media on how best to use the court system.

      Criminal Proceedings

      Trial Proceedings

      In Indiana, you have both a First Amendment, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), and statutory, Ind. Code. Ann. 5-14-2, right to attend all stages of criminal trials. This includes the preliminary hearing and the jury selection process.

      You may be denied access to the courtroom only if there would otherwise be serious and imminent danger to the defendant's rights. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury. If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, there must be a substantial probability that the exclusion will be effective in protecting against the perceived harm, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. Ind. Code. Ann. 35-34-2-4.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You may attend juvenile court proceedings where the juvenile is accused of murder or another felony. Ind. Code Ann. § 31-32-6-3. However, you do not have a right to attend all juvenile court proceedings as the presiding judge has the discretion to close the proceedings to the general public. Ind. Code Ann. § 31-32-6-2.

      You may be also be excluded from attending the testimony of a child witness or victim if the court finds that the allegation or defense involves matters of a sexual nature and that closing the proceeding protects the child's. In making its findings, the court should take into account the nature of the allegation or defense, the age of the child, the psychological maturity of the child, and the child's desire to testify in a closed proceeding. Ind. Code Ann. §§ 31-32-6-4, 31-32-6-5.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Indiana state courts. A civil proceeding may only be closed when the denial of access “is essential to preserve higher values and is narrowly tailored to serve that interest.” See Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (1994) (internal citation omitted).

      Jurisdiction: 

      Subject Area: 

      Access to Massachusetts Court Proceedings

      Note: This page covers information specific to Massachusetts. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      You have a right to attend most court proceedings in Massachusetts courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Massachusetts judiciary's website to find the locations, phone numbers, and websites for the state's courts. Additionally, the Massachusetts Supreme Judicial Court has published a useful set of Guidelines on the Public's Right of Access to Judicial Proceedings and Records. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980) This includes the preliminary hearing and the jury selection process.

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Mass. Gen. Laws ch. 277, § 5.

      Other Proceedings and Conferences You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings You will not be able to attend most juvenile proceedings in Massachusetts. Mass. Gen. Laws ch. 119, § 65. However, you may be able to attend the proceedings if the Commonwealth proceeds by indictment, which occurs if:

      • the juvenile is alleged to have committed an offense which would be punishable by imprisonment in state prison if he were an adult and he has previously been committed to the Department of Youth Services, or
      • the offense involves the infliction or threat of serious bodily harm.

      Mass. Gen. Laws 119, § 54. For example, if a juvenile is charged with murder, you will likely be able to attend.

      Civil Proceedings

      You have a common law right of access to civil trials. See Boston Herald v. Superior Court Dep't of the Trial Court, 658 N.E.2d 152, 155 n.7 (Mass. 1995). This right is not absolute but a judge must make every effort to arrive at a reasonable alternative to closure.

      Other State Courts

      Child Welfare Proceedings

      These proceedings, such as whether to take a child into the custody of the commonwealth, are closed to the general public. Mass Gen. Laws ch. 119, § 38.

      Jurisdiction: 

      Subject Area: 

      Access to Michigan Court Proceedings

      Note: This page covers information specific to Michigan. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Michigan state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Michigan judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right and a statutory right to attend all stages of criminal trials in Michigan state courts. See Richmond Newspapers, Inc. v. Virginia; 448 U.S. 555, 580 (1980), Mich. Comp. Laws 600.1420. This includes the preliminary hearing and the jury selection process.

      However, there are times when you will not be able to attend a criminal trial proceeding. Under the Michigan statute, if you are a minor, you may not be able to attend court proceedings involving "scandal or immorality." Id. Additionally, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13-15 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Mich. Comp. Laws 767.19f.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You should be able to attend juvenile proceedings in Michigan. However, you may be excluded during the testimony of a child witness or during the testimony of the victim if a party or the victim requests it. The court will consider the nature of the proceedings; the age, maturity, and preference of the witness; and, if the witness is a child, the preference of a parent, guardian, or legal custodian that the proceedings be open or closed. If the juvenile is accused of certain serious crimes, the court may not close the hearing during his testimony. Mich. Ct. R. 3.925.

      Civil Proceedings

      You have a statutory right to attend civil proceedings in Michigan. Mich. Comp. Laws 600.1420. However, this right is not absolute. For example, the statute specifically exempts cases involving national security. When deciding whether to close the courtroom, a judge must at least "take testimony at a hearing open to all interested parties, explore the constitutional and statutory validity of any proffered justifications for excluding the public and press from any portion of the trial, and determine whether any alternative and less restrictive mechanisms exist." Detroit Free Press v. Macomb Circuit Judge, 275 N.W.2d 482, 484 (Mich. 1979).

      Jurisdiction: 

      Subject Area: 

      Access to New Jersey Court Proceedings

      Note: This page covers information specific to New Jersey. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in New Jersey state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the New Jersey judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process. In addition, there is a strong presumption toward public trials under New Jersey court rules. N.J. Ct. R. 1:2-1.

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. N.J. Ct. R. 3:6-6, 3:6-7.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You must apply to be able to attend juvenile proceedings in New Jersey. The court may grant your application if it determines there is no substantial likelihood that specific harm to the juvenile would result. If you do not make such an application, the judge may allow you to attend if you agree not to record or disclose the names of anyone involved in the hearing without her authorization. However, you may be excluded if the juvenile, her attorney, or the juvenile's guardian objects. N.J. Ct. R. 5:19-2.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in New Jersey state courts. A civil proceeding may only be closed when the denial of access serves an important interest and that there is no less restrictive way to serve that interest. See N.J. Ct. R. 1:2-1; Publicker Indus. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).

      Jurisdiction: 

      Subject Area: 

      Access to New York Court Proceedings

      Note: This page covers information specific to New York. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in New York state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the New York judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process. In addition, there is a strong presumption toward public trials under New York statutory law. N.Y. Jud. Law 4.

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See N.Y. Crim. Proc. Law § 190.25(4)(a).

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You may be refused access to juvenile proceedings in New York. N.Y. Family Ct. Act 341.1. However, if the judge determines that the case warrants closure, you may be denied access. The judge will consider, among other factors, if you are causing or are likely to cause a disruption, if a party objects to your presence for a compelling reason, if the orderly and sound administration of justice requires your exclusion, and if less restrictive alternatives are available.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in New York state courts. N.Y. Jud. Law 4. However, your right to attend is not absolute; your access to civil proceeding may be restricted when there are compelling reasons for closure. Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 23 (2d Cir. 1984).

      Other State Courts

      Family Court

      You should be able to attend family court proceedings in New York as there is a presumption that family court proceedings in New York are public. N.Y. Comp. Codes R. & Regs. tit. 22, 205.4 (search for "22 NYCRR 205.4"). However, if the judge determines that the case warrants closure, you may be denied access. The judge will consider, among other factors, if you are causing or are likely to cause a disruption, if a party objects to your presence for a compelling reason, if the orderly and sound administration of justice requires your exclusion, and if less restrictive alternatives are available. For example, the judge may close the courtroom if he determines potential trauma to children would result from your presence.

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      Access to North Carolina Court Proceedings

      Note: This page covers information specific to North Carolina. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in North Carolina state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the North Carolina judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This includes the preliminary hearing and the jury selection process.

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. N.C. Gen. Stat. § 15A-623.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      Juvenile proceedings in North Carolina are presumptively open. However, a judge may exclude you from a hearing or part of a hearing if there is good cause to close it. The judge will consider the nature of the allegations against the juvenile, the age and maturity of the juvenile, the benefit to the juvenile of confidentiality, the benefit to the public of an open hearing, and the extent to which the confidentiality of the juvenile's file will be compromised by an open hearing. Note that the hearing will remain open if the juvenile so requests. N.C. Gen. Stat. § 7B-2402.

      Civil Proceedings

      You have a qualified constitutional right to attend civil court proceedings under the North Carolina State Constitution. N.C. Const. art. I, § 18. Your right of access may be limited when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest. The court must consider alternatives before determining that closure is necessary. Virmani v. Presbyterian Health Servs. Corp., 515 S.E.2d 675, 693 (N.C. 1999).

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      Access to Ohio Court Proceedings

      Note: This page covers information specific to Ohio. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Ohio state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Ohio judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process. This right is also protected by the Ohio Constitution. Ohio Const. art. I, § 16; see also State v. Lane, 397 N.E.2d 1338 (Ohio 1979).

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. Ohio R. Crim. P. 6(e).

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.


      Juvenile Court Proceedings

      You have a right to attend serious youthful offender proceedings are open to the public. A presiding judge, may in her discretion, excluded the general public from attending all other juvenile court proceeding. However, even if the general public is excluded, you may still be able to gain access if you can demonstrate your need for access is sufficient to outweigh the interest in keeping the hearing closed. Ohio Rev. Code § 2151.35; Ohio Juv. R. 27(1).

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Ohio state courts. However, the right is not absolute; a judge may choose to close the proceedings in certain situations, including those where certain privacy rights of participants or third parties are at stake, trade secrets could be revealed, or national security is involved. Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-78 (6th Cir. 1983).

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      Access to Pennsylvania Court Proceedings

      Note: This page covers information specific to Pennsylvania. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Pennsylvania state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Pennsylvania judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). This includes the preliminary hearing and the jury selection process. The Pennsylvania Supreme Court has recognized that the principle of openness is also derived from the common law and the state constitution. Pa. Const. art. 1, § 11; Commonwealth v. Fenstermaker, 530 A.2d 414, 417 (Pa. 1987).

      As in federal court, you may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. 42 Pa. Cons. Stat. § 4549.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You will likely not be able to attend juvenile proceedings in Pennsylvania. However, if the juvenile is over 14 years old and accused of a felony, or is over 12 years old and accused of one of several serious felonies, the proceedings will be open to the public. If the attorney for the commonwealth and the juvenile agree to keep the hearing closed, it will not be open to the public even if those conditions are met. 42 Pa. Cons. Stat. § 6336.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Pennsylvania state courts. A judge will only close a civil proceeding when: the denial of access serves an important interest, there is no less restrictive way to serve that interest, the material is of the kind that courts will protect, and public access will cause serious injury to the party seeing closure. See Storms v. O'Malley, 779 A.2d 548, 569 (Pa. Super. Ct. 2001); see generally Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984).

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      Access to Texas Court Proceedings

      Note: This page covers information specific to Texas. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Texas state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Texas judiciary's website to find the locations, phone numbers, and websites for the state's District Courts, Courts of Appeal, Supreme Court, and Court of Criminal Appeals. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have the same First Amendment right to attend all stages of criminal trials as you do in federal court. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process.

      You may be denied access to the courtroom if there would otherwise be a serious and imminent threat to the administration of justice. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury. However, if the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the accused and closure must be an effective way to protect the accused's rights. There must be no alternative available other than change of venue. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      As in federal court, you will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Tex. Code Crim. Proc. art. 20.011, Tex. Code Crim. Proc. art. 20.02.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You should be able to attend most juvenile hearings in Texas. Proceedings are public unless the court determines that there is good cause to close them. However, if the juvenile is under the age of 14, you will not be able to attend unless the court finds that the interests of the child or the interests of the public would be better served by opening the hearing. Tex. Fam. Code Ann. § 54.08.

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Texas state courts. A civil proceeding may only be closed when the denial of access serves an important interest and that there is no less restrictive way to serve that interest. See Publicker Indus. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).

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      Access to Virginia Court Proceedings

      Note: This page covers information specific to Virginia. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Virginia state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Virginia judiciary's website to find the locations, phone numbers, and websites for the state's Circuit Courts, Courts of Appeal, and Supreme Court. This page focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process. The Virginia state constitution also provides a right of access to court proceedings. Va. Const. art. I, § 12; see Richmond Newspapers, Inc. v. Commonwealth, 281 S.E.2d 915, 922 (Va. 1981).

      You may be denied access to the courtroom if a party seeking to close the hearing has an overriding interest that is likely to prejudiced and the closure is narrowly tailored to protect that interest. For example, the court may exclude you if the media's presence will deprive the defendant of her right to a fair trial because media coverage will influence the jury.

      If the trial court closes the proceeding, the closure must be no broader than necessary to protect the interest of the party asserting the need for closure. The court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. See generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Va. Code Ann. § 19.2-192.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      You will not be able to attend most juvenile proceedings in Virginia because they are closed under state law. However, proceedings involving juveniles over the age of 14 who are charged with an offense that would be a felony if committed by an adult are presumptively open. Those proceedings may only be closed upon good cause and the court must state its reasons in writing. Va. Code Ann. § 16.1-302(C). The juvenile also has the right to a public trial if he so requests. Va. Code Ann. § 16.1-302(D).

      Civil Proceedings

      In general, you should be able to attend civil proceedings, which are presumptively open to the public, in Virginia state courts. A civil proceeding may only be closed when the denial of access serves an important interest and that there is no less restrictive way to serve that interest. See Publicker Indus. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984).

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      Access to Washington Court Proceedings

      Note: This page covers information specific to Washington. For general information concerning access to and use of court proceedings see the Access to Courts and Court Records section of this guide.

      You have a right to attend most court proceedings in Washington state courts. However, your right of access is not absolute, and a court can restrict your access under certain circumstances. If you are interested in attending a court proceeding, visit the Washington judiciary's website to find the locations, phone numbers, and websites for the state's courts. This pages focuses on your ability to access certain types of proceedings.

      Criminal Proceedings

      Trial Proceedings

      You have a First Amendment right to attend criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580(1980). This includes the preliminary hearing and the jury selection process. The Washington state constitution also provides a right of access to court proceedings. Wash. Const. art. I, § 10.

      However, your right to attend criminal trial proceedings is not absolute. A judge will close a criminal trial proceeding when: 1)the proponent of closure has shown a need for closure; 2) members of the public who are present at the time closure is requested are given an opportunity to object; 3) the closure is "both the least restrictive means available and effective in protecting the interests threatened"; 4) the judge has weighed competing interests and has considered all alternative methods; and, 5) the closure order is "no broader in its application or duration than necessary." Seattle Times Co. v. Ishikawa, 640 P.2d 716, 719-721 (Wash. 1982); see generally Press-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986).

      Grand Jury Proceedings

      You will not be able to attend grand jury proceedings. These are proceedings in which the prosecutor presents evidence before a group of jurors who will determine if there is a sufficient basis to bring criminal charges against a person. Grand jury proceedings are held in secret and are not considered to be a part of the criminal trial process. See Wash. Rev. Code § 10.27.080.

      Other Proceedings and Conferences

      You will not be able to access a few other hearings that have traditionally been closed to the public. These include “side-bar” or “in-chambers” conferences between the lawyers and the judge, and plea-bargaining sessions between the prosecutor and the defendant.

      Juvenile Court Proceedings

      In general, you will be able to attend juvenile proceedings involving criminal offenses. However, although such proceedings are presumptively open, a judge may close a particular hearing for good cause. Wash. Rev. Code § 13.40.140(6). See below for information about other proceedings in juvenile court.

      Civil Proceedings

      You have a right to attend civil proceedings. Wash. Const. art. I, § 10; Cohen v. Everett City Council, 535 P.2d 801, 803 (Wash. 1975). However, this right is not absolute. As in criminal cases, the court looks at the five Ishikawa factors, discussed above, to try to balance the presumption of openness with other interests. See Dreiling v. Jain, 93 P.3d 861, 869-870 (Wash. 2004).

      Other State Courts

      Mental Illness Proceedings You will likely not be able to attend mental illness proceedings. They are closed to the public unless the person who is the subject of the hearing makes a written request for them to be open. Wash. Sup. Ct. Mental Proceedings R. 1.3.

      Juvenile Court - Dependency Proceedings

      You will probably be able to attend dependency and termination of parent-child relationship hearings. They are presumptively open unless the judge decides holding a closed proceeding is in the best interests of the child. Wash. Rev. Code § 13.34.115. Even if the hearing is closed, you may still be able to attend if the parent so requests unless the judge determines that it is not in the best interests of the child to open the proceedings to the general public.

      Jurisdiction: 

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      State Court Records

      All fifty states and the District of Columbia allow public access to their court records. While many of these state laws are similar to the law governing Federal Court Records, some variation exists on a state-by-state basis. Choose your state from the list below for state-specific information on accessing court records. (Note that this guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

      Subject Area: 

      California State Court Records

      Note: This page covers information specific to California. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in California state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the Courts page on the California Courts website for locations, phone numbers, and websites for the California Superior Courts, Courts of Appeal, and Supreme Court. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings. Other types of records that you can access include executed search and arrest warrants, probation officer reports, written victim statements, settlement agreements filed in court, and grand jury testimony resulting in an indictment, once that indictment has been handed down.

      Certain categories of records are generally not open to the public:

      • most juvenile court records;
      • mental evaluation records;
      • discovery records not filed in court or introduced into evidence;
      • adoption records;
      • trade secret information; and
      • grand jury transcripts that do not result in an indictment.

      Beyond that, a court may seal a record or records in a criminal case if it determines that disclosure would threaten the defendant's right to a fair trial. In a civil case, a court may seal documents if it determines that one or both of the parties have a legitimate interest in keeping the documents confidential and that interest outweighs the public interest in accessing the documents. Parties to a civil lawsuit may agree or "stipulate" to the sealing of documents, but this does not remove the court's obligation to determine whether the parties' interest in confidentiality overrides the public interest.

      A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. The First Amendment Project has a great script to follow when parties to a lawsuit stipulate to seal documents or you are denied access to court records. If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.

      For additional information on access to court records in California, see the First Amendment Project's Guide to Access to Courts and Court Records in California.

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      District of Columbia Court Records

      Note: This page covers information specific to the District of Columbia. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in D.C. courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the information page on District of Columbia Courts website for locations, phone numbers, websites, and other information about courts operating in the District. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings. On the other hand, you generally cannot access juvenile court records. In addition, you do not have a right to access documents and materials exchanged between parties to a civil lawsuit in pretrial discovery but never filed with the court or introduced into evidence. Moreover, the court has discretion to seal records that contain trade secrets, national security information, and information the disclosure of which would invade someone's privacy or promote libel or scandal. Beyond that, the court may seal documents when doing so is necessary to ensure a defendant's right to a fair trial, to obtain the cooperation of witnesses and other sources of information, and to protect parties or witnesses who have acted in reliance on confidentiality. In each case, the court must determine that the specific interests favoring secrecy outweigh the public interest in access.

      A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.

       

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      Florida State Court Records

      Note: This page covers information specific to Florida. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in Florida state courts. However, your right of access is not absolute, and a court may order that records be made confidential under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the Florida State Courts page for links to the websites of the Florida County Courts, Circuit Courts, District Courts of Appeal, and Supreme Court. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Florida Rule of Judicial Administration 2.420 covers the details of public access to Florida court records. Under the law, the public has a presumptive right of access to all court records in the custody of the court clerk, including case dockets, transcripts, motions filed by the parties to a lawsuit, exhibits filed with the court as evidence, and records of depositions filed with the court. Florida courts have also found a presumptive public right of access to many pretrial and post-trial records, including juror interviews, jury misconduct hearings, records of sentencing proceedings, and civil settlement agreements.

      Court records that would otherwise be public may be closed (i.e., made confidential) if:

      • closure is necessary to prevent a serious, imminent threat to the administration of justice;
      • there is no reasonable alternative to closure; and
      • closure is effected in the narrowest possible way.

      Courts must give the public "reasonable notice" of an order to close judicial records and an opportunity to be heard on the issue, although the court may give notice and opportunity to be heard after it has closed the record. If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed. The Judicial Access chapter of the Florida Bar's Reporter's Handbook includes a great section (III.B) on what to do when you are denied access to court records.

      Jurisdiction: 

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      Georgia State Court Records

      Note: This page covers information specific to Georgia. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in Georgia state courts. However, your right of access is not absolute, and a court may limit access to records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the information page on the Judicial Branch of Georgia website for links to locations and phone numbers of the state courts operating in Georgia. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Georgia law presumes that all court records must be open to the public. As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, trial transcripts, official recordings of the judge's remarks made in open court, and records of pre- and post-trial hearings. Judges have more discretion to make records of juvenile proceedings confidential, and many juvenile proceedings are closed to the public. However, some juvenile court proceedings are open to the public, such as child support hearings and proceedings involving a juvenile charged with a felony.

      In order to deny access to court records, a court must determine that there is a compelling need for secrecy that outweighs the public interest in access. The court cannot simply state that the harm from disclosure outweighs the public interest; it must make specific findings of fact to support its decision to close records. With regard to closure because of a claimed privacy interest, the court must distinguish the privacy interest in that particular case from the general desire to avoid embarrassment that would otherwise lead all parties to a lawsuit to ask for closed records.

      A court must issue an order to limit access to court documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed. Rule 21.4 of the Uniform Superior Court Rules gives you the ability to appeal a court order denying you access to a court record to the Georgia Supreme Court.

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      Illinois State Court Records

      Note: This page covers information specific to Illinois. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in Illinois courts. However, your right of access is not absolute, and a court may limit access to court records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). State websites provide locations and phone numbers for the Illinois Circuit Courts, Appellate Courts, and Supreme Court. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Illinois courts recognize both a common law and a First Amendment right of access to court records, and the state legislature enacted a statute making all records filed with the clerk of a Circuit Court presumptively open to the public. See 705 Ill. Comp. Stat. 105/16. As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings. On the other hand, you generally cannot access juvenile court records. In addition, you do not have a right to access documents and materials exchanged between parties but never filed with the court. For instance, the parties to a case might enter into a settlement agreement but not submit the agreement to the court. In that case, you could not gain access to the settlement agreement.

      A party to a lawsuit or criminal case may ask a court to seal otherwise public court records for a variety of reasons, including to protect their private information and trade secrets. The party seeking closure of court records must give a compelling reason, and the court must support closure with specific factual findings demonstrating why it is justified and craft its order as narrowly as possible. In the past, courts have sealed documents relating to medical and personal financial information. Mere potential for embarrassment is not sufficient.

      A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.


      Jurisdiction: 

      Subject Area: 

      Indiana State Court Records

      Note: This page covers information specific to Indiana. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy many records and documents filed in Indiana courts. However, your right of access is not absolute. Indiana law exempts certain categories of information from disclosure, and a court may limit access to court records on its own initiative and at the request of a party to a lawsuit or criminal case. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). State websites provide locations and phone numbers for the Indiana Circuit and Superior Courts, Courts of Appeals, Supreme Court, Tax Court, and Limited Jurisdiction Courts. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Under Indiana Administrative Rule 9, there is a strong presumption in favor of public access to all court records. As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. However, Administrative Rule 9(G) lists many categories of information that are not open to the public. For example, you will not be able to view most adoption records, records of juvenile proceedings, many medical, mental health, and tax records, records revealing the personal information of various persons, and the judges' personal notes and email. See Indiana Administrative Rule 9(G) and pages 11-13 of the Indian Supreme Court's Public Access to Court Records Handbook for details.

      A judge may order that a court record containing any information listed in Rule 9(G) be closed to the public. In addition, any person who would be affected by the release of information contained in a court record may petition the court to prohibit access to it. In order to prohibit access to a court record, the person seeking closure must prove to the court by clear and convincing evidence that

      • the public interest will be substantially served by prohibiting access;
      • access or dissemination of the information will create a significant risk of substantial harm to the person making the request, other persons, or the general public;
      • substantial prejudicial effect to on-going proceedings cannot be avoided without prohibiting public access; or
      • the information should have been excluded from public access under Rule 9(G).

      In deciding whether or not to prohibit access to a court record, the court is supposed to balance the interest in public access against the grounds the person presents. See Rule 9(H). If the court prohibits access, it must state its reason for doing so and use the least restrictive method for blocking access to the information in question. For further details see pages 14 and 15 of the Public Access to Court Records Handbook.

      If you are denied access to a court record, you may file a petition with the court having jurisdiction over the record. To obtain access to a court record sealed under Rule 9(G) or at the request of the person affected by disclosure, you must demonstrate that

      • extraordinary circumstances exist that requires deviation from the ordinary rules;
      • the public interest will be served by allowing access;
      • access or dissemination of the information creates no significant risk of substantial harm to any party, to third parties, or to the general public; and
      • the release of information creates no prejudicial effect to on-going proceedings or the information should not be excluded for public access under Rule 9(G).

      Given the complexity of Indiana law on this topic, you should seek legal assistance if you plan on challenging a denial of access to court records.

      For additional information, see page 16 of the Public Access to Court Records Handbook.

      Jurisdiction: 

      Subject Area: 

      Massachusetts State Court Records

      Note: This page covers information specific to Massachusetts. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

      You have a right to inspect and copy most records and documents filed in Massachusetts state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Massachusetts judiciary's website to find the locations, phone numbers, and websites for the state's courts. Additionally, see the Massachusetts Supreme Judicial Court's useful set of Guidelines on the Public's Right of Access to Judicial Proceedings and Records (SJC Guidelines).

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings. Other types of records that you can access include the index of the parties in both pending and closed civil and criminal cases, case fields, certain juvenile records, documents filed with the court in connection with a settlement, search warrants once returned to the court, and names and addresses of jurors and jury questionnaires.

      Neither law nor court policy require records be placed online. The Supreme Judicial Court has determined that, at least for now, less information should be available online than at a courthouse. See Policy Statement by the Justices of the Supreme Judicial Court Concerning Publication of Court Case Information on the Web. However, the Court also recommends that "some information about every case" should be available such as case captions, party names (though not the names of criminal defendants), docket numbers, assigned judges, case types, attorney information, and some docket entries to be placed online. The website of Supreme Judicial Court and the Appeals Court of Massachusetts features those courts' opinions, docket information including the briefs filed by the parties, court calendars, and webcasts of the oral arguments. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Certain categories of records are generally not open to the public including grand jury records, records of dismissed controlled substance cases, records from care and protection cases, and certain financial statements. Other records may or may not be available, such as commitment records, the names of sexual assault victims, and adoption records. You can find a complete listing of which records are open, closed, or left to the discretion of the court in the SJC Guidelines.

      Beyond that, the court may impound documents if it finds good cause to do so, after considering "the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason(s) for the request." SJC Guidelines.

      A court must issue an order to impound records. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to terminate or modify the impoundment to challenge the court's decision. See Uniform Rule on Impoundment Procedure 10. You may also seek review by a single justice of an appellate court. See Uniform Rule on Impoundment Procedure 12. You may also be able to argue you have a First Amendment right to access the record in question. See SJC Guidelines. If you wish to challenge an order impounding court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      Michigan State Court Records

      Note: This page covers information specific to Michigan. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy many records and documents filed in Michigan courts. However, your right of access is not absolute. Michigan statutes and court rules exempt certain categories of information from disclosure, and a court may limit access to court records at the request of a party to a lawsuit or criminal case. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). State websites provide locations and phone numbers for the Michigan Trial Courts (Circuit, Probate, and District Courts), Court of Appeals, and Supreme Court. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      Under Michigan Court Rule 8.119(E), there is a strong presumption in favor of public access to court records. You should be able to access any file or document, and the information contained within, unless your access is restricted by statute or a court rule, or has been sealed by the court. However, you will not be able to access, among other things, many files related to mediation, jury questionnaires, grand jury information, drug court participation records, crime victim addresses and telephone numbers, infectious disease testing results, and search warrants at least until 65 days after issuance, adoption records, waivers of parental consent for abortions, and wills filed for safekeeping. The Michigan Court System's website contains a chart which lists categories of non-public and limited access records. You should be aware that if you ask about a record to which access is restricted, court personnel will respond with the statement that "No public record exists."

      A judge may order that a court record be closed to the public if:

      • A party has filed a written motion that identifies the specific interest to be protected,
      • The court has made a finding of good cause, in writing or on the record, which specifies the grounds for the order, and
      • There is no less restrictive means to adequately and effectively protect the specific interest asserted.

      The judge must consider both the interests of the parties and the interest of the public in deciding whether to seal a record, and must provide all interested persons the opportunity to be heard. See Michigan Court Rule 8.119(F). The judge may not seal court orders or opinions.

      If you are denied access to a sealed court record, you may file a motion objecting to the judge's decision. Michigan Court Rule 8.119(F))(6). For access to non-public and restricted records, the Michigan Court System's website's chart includes information on how you may obtain access to each category of records. If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      Missouri State Court Records

      Note: This page covers information specific to Missouri. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in Missouri state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the Missouri Courts website for locations, phone numbers, websites, and other information about courts operating in Missouri. Alternatively, you may be able to access court records online at Case.net, the state's automated case management system. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings. 

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings. However, some records are generally not open to the public, such as juvenile court records, trade secret information, and mental health evaluations. See, e.g., Mo. Ann. Stat. §§ 211.321, 630.14. Also, though the vast majority of public court records are made available on Case.net, not all records that are available in person are made available online. For example, in criminal cases, a prosecuting attorney may request the case record be temporarily removed from Internet access if a warrant has been requested and there is a high risk of injury to officers or others should the defendant become aware of the issuance of the warrant. See Court Operating Rule 2.04.

      In addition, a court has the discretion to seal a record when there is a compelling justification. "Given the presumption in favor of open records, an abuse of discretion is present when trial court orders inexplicably seal court records, do not articulate specific reasons for closure, or do not otherwise demonstrate a recognition of the presumptive right of access." Transit Casualty Co. ex rel. Pulitzer Publishing Co. v. Transit Casualty Co. ex rel. Intervening Employees, 43 S.W.3d 293, 300 (Mo. 2001). A court must issue an order to seal documents. In this order, the court must "identify specific and tangible threats to important values." Transit Casualty at 302. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      New Jersey State Court Records

      Note: This page covers information specific to New Jersey. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy many records and documents filed in New Jersey courts. However, your right of access is not absolute. New Jersey statutes and court rules exempt certain categories of information from disclosure, and a court may limit access to court records in certain situations. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). State websites provide locations and phone numbers for the Municipal Courts, Local and County Courts, Tax Court, Appellate Division of the Superior Court, and Supreme Court. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      New Jersey Court Rule 1.38 covers the details of public access to New Jersey court records. Under the rule, the public has a presumptive right of access to all court records made, maintained or kept on file by any court, with some limited exceptions. These exceptions include jury questionnaires, civil commitment records, records relating to child sexual abuse victims, search warrants, records about grand jury proceedings, and most records of the family division. More information about non-public records is available in a set of guidelines recently prepared for court employees.

      A court may seal records at its discretion if it finds that good cause exists to do so. To determine if good cause exists, the court must determine whether the need for secrecy substantially outweighs the presumption of access, and the need for secrecy must be demonstrated for each document. Hammock by Hammock v. Hoffmann-Laroche, 662 A.2d 546, 559 (N.J. 1995).

      If you seek to access sealed records, the party attempting to keep them closed must demonstrate that closure is still currently necessary. Id. If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      New York State Court Records

      Note: This page covers information specific to New York. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy many records and documents filed in New York courts. However, your right of access is not absolute. New York statutes and court rules exempt certain categories of information from disclosure, and a court may limit access to court records in certain situations. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). State websites provide locations and phone numbers for the Trial Courts, the Supreme Court Appellate Division, and the Court of Appeals (the state's highest court). Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      There is a strong presumption of open access to court records in New York. See New York Jud. Law 255 to 255-B (select individual sections). However, there are numerous exceptions to this presumption. For example, you will likely not be able to access family court records, certain matrimonial records, criminal records when the defendant is found not guilty, adoption records, and civil commitment records. A recent report by the Commission on Public Access to Court Records contains some more examples.

      A court may also seal its records upon finding there is good cause to do so. See 22 NYCRR § 216.1 (search for "sealing of court records"). Courts generally first require the person seeking to seal the records to demonstrate good cause to seal the record exists, and then balance that reason for closure against the public's interest in access. While this rule only directly applies to civil cases, criminal courts sometimes use it for guidance.

      To obtain access to a sealed record, you can make a motion to vacate the sealing order. See In re Crain Communications, Inc. v. Hughes, 539 N.E.2d 1099, 1100 (N.Y. 1989). You may also make a direct appeal if the trial judge failed to give a reason for sealing the records. See In re Conservatorship of Brownstone, 594 N.Y.S.2d 31, 32 (App. Div. 1993). If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      North Carolina State Court Records

      Note: This page covers information specific to North Carolina. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in North Carolina state courts. However, your right of access is not absolute, and a court may limit access to records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). See the list of courthouses by county on the North Carolina Court System website for directions and telephone numbers for the state courts operating in North Carolina. Information for the state's Court of Appeals and Supreme Court are available on their sites. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records.

      Under N.C. Const. art. I, § 18, there is a qualified right of public access to court records, at least in civil cases. See Virmani v. Presbyterian Health Servs. Corp., 515 S.E.2d 675, 693 (N.C. 1999). North Carolina law provides a right of access to all court records, both civil and criminal, in both the general public records law, N.C. Gen. Stat. § 132-1, and a specific statute about court records, N.C. Gen. Stat. § 7A-109(a). The court records statute requires that all records be open to public inspection, except as prohibited by law. Some court records are specifically named in another statue as being public unless sealed by the court: "arrest and search warrants that have been returned by law enforcement agencies, indictments, criminal summons, and nontestimonial identification orders." N.C. Gen. Stat. § 132-1.4(k). You will likely not have access to certain documents, however, such as civil commitment materials, juvenile delinquency records, and information from child abuse or neglect cases.

      A court may deny access to records "when its use is required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial." Virmani v. Presbyterian Health Servs. Corp., 515 S.E.2d 675, 685 (N.C. 1999). If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed. North Carolina law explicitly grants you the ability to assert your right of access to records from a civil proceeding and to immediately appeal if your request is denied. See N.C. Gen. Stat. § 1-72.1.

      Jurisdiction: 

      Subject Area: 

      Ohio State Court Records

      Note: This page covers information specific to Ohio. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in Ohio state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Ohio judiciary's website to find the locations, phone numbers, and websites for the state's courts.

      Alternatively, you may be able to access court records online. The Ohio Supreme Court has a large number of court documents on-line, including documents filed by the parties. However, not all documents are on-line for each case, although the on-line search engine will show that they were filed. Ohio Appellate Courts have on-line access to opinions. Local courts have decided whether to put records on-line on a county-by-county basis and can be accessed through individual county websites. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. However, there are a number of broad categories of records that are not available to the public including adoption records, records relating to juveniles seeking permission for an abortion, and probation and parole records, as well as other sensitive information such as HIV test results and the identity of victims of child sexual abuse.

      Beyond that, a party to a court case has the right to request that public access to information in the court record be restricted. The court may restrict the information at its discretion after considering: (1) risk of injury to individuals; (2) individual privacy rights and interests; (3) proprietary business information; and (4) public safety. If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed.

      For more information about access to Ohio Court Records, download section 15 of Ohio State Bar Association's The Legal Handbook for Ohio Journalists on Media Access to Courts, Meetings and Public Records.

      Jurisdiction: 

      Subject Area: 

      Pennsylvania State Court Records

      Note: This page covers information specific to Pennsylvania. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide.

      You have a right to inspect and copy most records and documents filed in Pennsylvania state courts. This right is rooted in the commmonlaw, see Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1983), and starting January 1, 2009, will be codified in the newly revised Right-To-Know Law. Refer to the section on Access to Public Records in Pennsylvania to better understand what types of records you can access and the mechanisms for doing so under the new law.

      Despite the presumption of openness, your right of access is not absolute. A court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Pennsylvania judiciary's website to find the locations, phone numbers, and websites for the state's courts.

      Alternatively, you may be able to access court records online. Some Pennsylvania state court records are online, although this access is by no means comprehensive. For example, docket sheets and court calendars and Supreme Court and appellate opinions are available online, while filed court documents (e.g., motions and briefs) are not usually accessible over the internet. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      At the courthouse you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. However, there are records that are highly sensitive in nature which you will not be able to access, such as those involving divorce cases, adoption proceedings, and juvenile proceedings. Beyond that, a court may seal a record or records when good cause exists. Good cause exists where disclosure will result in clearly defined and serious injury to the party requesting closure. For example, in a criminal case, a court will seal the necessary records if it determines that disclosure would threaten the defendant's right to a fair trial, or jeopardize the safety of informants or the integrity of an ongoing investigation.

      A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. If you wish to challenge an order closing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      Texas State Court Records

      Note: This page covers information specific to Texas. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in Texas state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Texas judiciary's website to find the locations, phone numbers, and websites for the state's courts. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. However, there are certain types of court records that you will not be able to inspect. For example, you will not have access to juvenile records where the individual has not committed a felony or a Class A or B misdemeanor between the ages of 17 and 21.

      Beyond that, the court may seal court records where the significant privacy interest in sealing the records outweigh the presumptive right of public access. The court must also find that there is no less restrictive means to protect the significant privacy interest.

      You may appeal a court's denial of access to records by filing a petition for review with the Administrative Director of the Office of Court Administration. That petition has to be filed within 30 days of the denial, and must include:

      • a copy of the original request and denial notice;
      • any supporting facts and arguments in favor of your right to access; and
      • if you like, a request to expedite the review and the reasons for it.

      The petition will then be referred to a special committee consisting of no fewer than five judges. The committee will consider the case for and against granting the request and issue a written decision within 60 days. See Texas Rule of Judicial Adjudication 12.9. If you're frustrated by the the committee's decision, you may file a writ of mandamus with the court. Refer to our section on Finding Legal Help for more information on how to proceed with a court action.

       

      Jurisdiction: 

      Subject Area: 

      Virginia State Court Records

      Note: This page covers information specific to Virginia. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in Virginia state courts. Va. Code § 17.1-208 provides that, with certain exceptions, any records or papers of any circuit court that are maintained by the clerk of the circuit court “shall be open to inspection by any person.” The Supreme Court of Virginia has interpreted this provision to create “a statutory presumption of openness to the public.” Perreault v. The Free Lance Star, 666 S.E.2d 352, 358 (2008). However, your right of access is not absolute, and a court may seal records under certain circumstances.

      If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Virginia judiciary's website to find the locations, phone numbers, and websites for the state's courts. Alternatively, you may be able to access court records online. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. Virginia courts have also ruled that unsealed mental health evaluations admitted into evidence at a hearing, Lotz v. Commonwealth, 672 S.E.2d 833, 837 (2009), and unsealed petitions for approval of settlements in wrongful death suits, Perreult, 666 S.E.2d at 359, are subject to disclosure, notwithstanding other statutes providing for confidentiality. However, you will not be able to access other documents associated with a case, such as materials uncovered through discovery but not filed with the court, see Shenandoah Publ'g House, Inc. v. Fanning, 368 S.E.2d 253, 257 (1988), trial exhibits that were not admitted into evidence, and notes written by the judge or other court personnel.

      Additionally, Virgina law does exclude certain categories of court records from being made available. One major exclusion is criminal records that may interfere with an ongoing investigation, compromise the privacy of a juvenile, or reveal the identity of a witness that has been promised anonymity. See Va. Code § 2.2-3706. The identity of victims of sexual assault may also not be disclosed in most circumstances. See Va. Code § 19.2-11.2.

      Beyond that, a court may seal a record or records in a criminal case if it determines that disclosure would threaten the defendant's right to a fair trial. To overcome the presumption of public access, the party requesting the seal “bears the burden of establishing an interest so compelling that it cannot be protected reasonably by some measure other than” sealing the documents. Lotz, 672 S.E.2d at 837 (internal quotation omitted). In a civil case, a court may seal documents if it determines that one or both of the parties have an interest in keeping the documents confidential and that interest outweighs the presumptive right of the public in accessing the documents. The interest must be specific; the risk of damage to professional reputation, emotional damage, or financial harm, in the abstract is not sufficient to seal a record. Shiembob v. Shiembob, 685 S.E.2d 192, 197 (2009).

      A court must issue an order to seal documents. If you are denied access to court records, ask the clerk for the order sealing the documents. If such an order exists, you may consider moving to intervene in the case to challenge the court's decision. The Virginia Supreme Court has issued conflicting decisions on whether a writ of mandamus – an order by a higher court commanding a lower court to perform some mandatory duty – is an appropriate remedy for challenging the sealing of a document. See Smith v. Richmond Newspapers, Inc., 540 S.E.2d 878 (2001); Hertz v. Times-World Corp., 528 S.E.2d 458 (2000). If you wish to challenge an order sealing court records, you should get legal assistance to determine how best to proceed.

      Jurisdiction: 

      Subject Area: 

      Washington State Court Records

      Note: This page covers information specific to Washington. For general information concerning access to and use of court records see the Access to Courts and Court Records section of this guide. 

      You have a right to inspect and copy most records and documents filed in Washington state courts. However, your right of access is not absolute, and a court may seal records under certain circumstances. If you are interested in obtaining court records, you should go to the courthouse where the case is taking place and request the records in writing from the clerk of the court (there will usually be a request form). Refer to the Washington judiciary's website to find the locations, phone numbers, and websites for the state's courts.

      Alternatively, you may be able to access court records online. Refer to a local court's website and check to see if the court provides online access. Courts with online access usually provide access to docket sheets, however, documents filed with the court rarely are accessible. For more information, please consult the Reporters Committee for Freedom of the Press's state-by-state guide to access to court records and proceedings.

      As a general matter, you may access docket information, the pleadings and motions of the parties to a lawsuit, decisions and orders of the court, evidence introduced in court by either side, and transcripts of hearings, among other items found in a case file. The procedure for requesting these records varies from court to court; each court can provide access only to its own records. However, you will not be able to access court records that contain highly sensitive material, such as adoption records, mental illness commitment records, and alcohol and drug treatment commitment records. Other types of records, such as those concerning family law cases, are restricted; in order to get access you must file a Motion and Declaration to Allow Access to Records Under GR 22(h)(2) with the court.

      You may be denied access to a court record for a variety of reasons including: (a) data availability; (b) a lack of specificity in your request; (c) potential invasion of privacy created by release of records containing personal or highly sensitive information; and (d) potential disruption to the business of the courts. In order to make sure that the court's denial is not based on the lack of specificity in your request, make sure that you comply with the Judicial Information System Committee Rules. Under Rule 15, you must include a statement of the intended use and distribution, the type of information needed, and identifying information about the applicant in your written request.

      Keep in mind that Washington courts will consider several factors in deciding to allow or deny a request for documents containing highly sensitive information, however there are limits on who can request this information. Court rules specify that "a public purpose agency may request court records not publicly accessible for scholarly, governmental, or research purposes where the identification of specific individuals is ancillary to the purpose of the inquiry." GR31(f). A "public purpose agency" for this purpose includes nonprofit organizations, and thus may be applicable to you. The court will then balance the possible benefits to the operation of the judiciary and the risks created by permitting access, and will also consider whether access will fulfill a legislative mandate.

      If the balancing test comes out in your favor, you must sign a dissemination contract before accessing the restricted records. The dissemination contract obligates you to protect confidential information, including the identity of individuals. It also prohibits you from making copies of the records.

      You can appeal a denial of a request for information maintained at the state level to the Judicial Information System Committee, which consists of a number of state judges as well as three members outside of the judiciary. If you want to challenge the Committee's decision, you should get legal assistance to determine how best to proceed.

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      Access to Jury and Trial Participants

      In addition to observing court proceedings and obtaining court records, you may contact and interview many of the participants in a civil lawsuit or criminal case. Bear in mind that the participants may not want to talk with you about the case, and that you cannot compel them to do so. We address some of the details below.

      Juries

      Jury Selection

      You have a First Amendment right to observe the jury selection process, called voir dire in legal terminology. This process takes place in court, and generally involves lawyers asking questions to determine whether prospective jurors could make a fair decision. If the lawyers or the court asks the jurors to fill out questionnaires or other paperwork, you usually have a right to inspect these materials as well. You may find these rights valuable in identifying jurors and gathering background information about them.

      A court may limit your right of access to the juror selection process and juror questionnaires in limited circumstances: to protect a party's right to a fair trial, to protect a juror's legitimate privacy interest, or to otherwise further the interests of justice. Note that in criminal cases, federal courts do not disclose documents containing identifying information about jurors or potential jurors to the public. For more information, refer to Federal Judiciary's Privacy Policy, and read the Reporters Committee for Freedom of the Press' article on secret juries.

      In rare cases, a judge may deny access to all identifying information about jurors when there is a serious threat to the jurors' welfare. For example, in the 1977 trial of Leroy Barnes, who charged with violating multiple federal narcotics and firearms laws, a federal district court withheld jurors' names and addresses after the judge determined that the case presented an unusual risk to the jurors. See U.S. v. Barnes, 604 F.2d 121 (1979). For more information about this issue, read the Reporters Committee for Freedom of the Press' article on anonymous juries.

      Jury Deliberations

      You do not have a right to view or obtain information about a jury’s deliberations during the course of those deliberations. Once a jury has been empaneled, the judge will instruct the jury not to discuss the case with anyone or use the media to learn more about the case for the duration of the trial. This rule reflects a concern that discussion with outsiders may improperly influence the jury's process of deliberation and affect the jury's independence.

      Generally, you may contact jurors after the trial has ended and discuss the deliberation process, once the threat of tainting the jury's deliberations has passed. Not all jurors will want to talk with you. While judges cannot prohibit the media from talking with jurors after the trial without a compelling reason, many judges advise jurors not to talk about the deliberations process and to keep jury room discussions confidential.

      Trial Participants

      Witnesses and Parties

      In general, you may speak with the witnesses and parties involved in a case. A court may limit your ability to do so, however, if it issues a gag order, which is discussed below.

      Lawyers

      You may speak with the lawyers involved in a case, but they may not be able to answer all of your questions. Lawyers may discuss freely certain aspects of a case, such as the claims, offenses, or defenses involved, whether the case is in progress, and other information that is a matter of public record (i.e., reflected in the court files). But legal ethics rules prevent lawyers from talking to the press about other matters that might improperly influence the court or jury. For example, Rule 3.6 of the American Bar Association's Model Rules of Professional Conduct requires that a lawyer "not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Note that prosecutors have an additional responsibility under the Model Rules not to make statements outside the courtroom that would tend to heighten public condemnation of the accused. See Rule 3.8.

      A court may limit your ability to speak with the lawyers in a case, however, if it issues a gag order, which is discussed below.

      Judges

      In all likelihood, judges will be unwilling to speak with you about a case pending before them. Judicial ethics rules prohibit judges from speaking with the public about the substantive aspects of cases they are overseeing. For example, an ethical rule requires federal judges to "avoid public comment on the merits of a pending or impending action" until the completion of all appeals in the case. Code of Conduct for United States Judges, Canon 3A(6). Another ethical rule requires judges to refrain from making, during a pending case, any statement "that might reasonably be expected to affect its outcome or impair its fairness." American Bar Association's Model Code of Judicial Conduct, Canon 3(B)(9). Judges take these obligations extremely seriously.

      Gag Orders

      If a judge issues a gag order, the lawyers, witnesses, and parties in a case may not speak with you. A court may only issue a gag order under limited circumstances, when it determines that the release of information will have an improper affect on the proceedings.

      If you wish to challenge a gag order, you should get legal assistance to determine how best to proceed. The Reporters Committee for Freedom of the Press has a good description of the process for challenging a gag order, and a list of the cases in which gag orders have been denied.

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      Remedies if You Are Denied Access to Court Proceedings

      You have a right to challenge a court's closure of a proceeding that you wish to attend. How you go about challenging such a closure will depend on whether you are present in the courtroom at the time the judge orders closure or whether you find out about it after the fact.

      Responding to Closure Orders on the Spot

      You may be in attendance when a judge orders everyone to leave the courtroom unless they are associated with the case. Ask for the judge's permission to speak. If the judge allows you to speak, you should politely object to the closure and ask that your objection be noted on the record. Ask the judge for an opportunity present your arguments against closure, and time to prepare your arguments and/or get legal representation.

      If the judge will not allow you to speak, leave the courtroom. Do not raise your voice and make a scene; disturbing the decorum of a courtroom will very likely have negative consequences. Once you're out of the courtroom, you should quickly draft a letter to the judge informing her that you object to the closure and that you plan on filing a motion in opposition to the closure. Ask court personnel to deliver the note to the judge. You will need to find legal assistance immediately in order to determine how best to proceed.

      The First Amendment Project provide a good set of steps to handle closures in person. Although the steps are geared specifically toward California courts, most of the information applies to courts nationwide (you should research relevant cases or legislation in your jurisdiction, if necessary).

      Responding to Closure Orders After the Fact

      Alternatively, you may find out after the fact that a court closed a proceeding. If this is the case, go to the clerk's office and ask whether the judge explained her reasons for closure. You will likely need legal assistance in finding the correct laws to support your argument that the proceeding should never have been closed in the first place. If you believe that the proceeding was improperly closed, you can try to get a copy of the transcript from the proceeding. Get legal assistance to determine how best to proceed.

      For more information, consult the Reporters Committee for Freedom of the Press, which has a useful guide on how to proceed in these cases.

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      Practical Tips for Accessing Courts and Court Records

      While we can't guarantee that you will get every court record or attend every court proceeding you desire, the following tips will help ensure that you take full advantage of the wealth of information available through state and federal courts.

      Tips for Accessing Court Proceedings

      • Know your rights and be prepared. If you want to attend the court proceeding for a specific case, check with the clerk's office to see whether either party has filed a motion to close the proceedings. If you find a motion pending, you should consider getting legal assistance to help you oppose the motion. If the judge closes the proceedings while you are present in the courtroom, be prepared to object to the closure on the spot. Consult the section on Remedies if you are denied access for more information.

      • Be polite. Judges and court personnel take court decorum very seriously, so be respectful. A calm demeanor will also help you be taken more seriously. If you are asked to leave the courtroom, do not refuse to do so. Exit, and get legal help in planning your next step.

      • Understand courtroom restrictions on newsgathering activities. While you may be able to attend most judicial proceedings, there will often be restrictions on what tools you may use to take notes or record the session. For more information on newsgathering activities in court see the section on Recording Court Hearings.

      Tips for Accessing Court Records

      • Check to see if electronic access is available and affordable. Depending on the specific court, it is possible that some court records might be available online. The majority of federal court records are available through the PACER (Public Access to Court Electronic Records) system; you will need to register for an account, and there is a cost for accessing records. Unofficial copies of many federal court filings are also available for free at the RECAP Archive. Individual state courts are inconsistent about providing online access to records, particularly at the trial court level; where such access exists, there is often a cost associated. Some private databases, such as Lexis or Westlaw, also provide access to court filings, although the cost to subscribe to such services can be very expensive.  If you are just looking for a court's decisions (as opposed to complaints, answers, motions, or any other filings by the parties), some courts publish their decisions on their own websites; you can also try free services such as Google Scholar. If none of these options work for you for the records you are seeking, you can visit the courthouse in person and request to see the physical copies of the documents.
      • Know where to go for the records you want. Before visiting a courthouse, make sure you are going to the right place. Each court (whether a federal or state court, and whether at the trial, appellate, or supreme court level) will ordinarily only maintain records for that specific court's own cases and business. A little investigation before heading out the door can save substantial time driving around, so try to figure out which specific court is handling the case(s) in which you are interested. When you do reach the courthouse, your first stop should be the clerk's office. In a trial court, it is not uncommon for there to be separate clerks for civil cases and for criminal cases, so know which type of case you are researching.  There is usually a desk staffed by assistant clerks, who can help you with your request.
      • Make sure your request is clear. Even though court clerks will generally accept oral requests, draft a clear description of the records you wish to request before visiting the courthouse. Try to be as specific as possible. General requests -- such as "all files relating to X subject, Y person, or Z company" -- are unlikely to work and will often result in delays and additional costs. If you are interested in a particular case, try to identify the number assigned to the case by the court (often called the "docket number," "case number," or "index number") before visiting the courthouse. You might be able to find the docket number through some searching online, especially if others have written about the case before you.

      • Be willing to compromise. You should anticipate that problems will arise. The court might need more time to locate and review the records, or the information might be covered by one or more exemptions. When appropriate, offer to revise or narrow the scope of your request to move things along.
      • Be ready to deal with paper copies. Unless the court file for a case has been sealed, you should be able to review the original documents in the courthouse.  However, the court will not let you remove official copies of court records from the courthouse, and it is unlikely that they will provide free copies of documents. It is more likely that you will be given access to a photocopier, so it is possible that you might need plenty of dimes or quarters if the documents you want are lengthy.
      • File a lawsuit as a last resort. The simplest -- and often most effective -- remedy is to seek informal resolution of any disputes related to your request. A follow-up telephone call or email can sometimes get things back on track. If your informal approach is not successful, a lawsuit may be on the only way to get the records. Keep in mind, however, that obtaining court records through legal action can be a costly and drawn-out process.

      Bear in mind that accessing court records is only one of many important fact-finding tools in your information gathering toolbox. For a broad overview of how you can investigate the actions of a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation.

       

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      Intellectual Property

      Intellectual property is a blanket term for multiple areas of law that govern the ownership and rights to "products of the mind." Many, but not all, intellectual property laws seek to encourage innovation and creativity, with an ultimate aim of promoting a general benefit to society. They typically do so by granting a bundle of rights to the originator of the work or creation. Intellectual property encompasses four areas of law, each of which governs creations of different types and promotes different policies:

      Copyright: Copyright law protects the fruits of creative efforts, called "original works of authorship" in legal terminology. A copyright owner enjoys the exclusive right to reproduce the work, distribute it, display or perform it, and to create derivative works from it, as well as the ability to transfer any or all of these rights. Copyright protection generally lasts for seventy years beyond the death of the original author. Copyright's purpose is to stimulate the production of creative works by giving authors a financial incentive to create new works. Examples of copyrightable works include blog posts, photographs, videos, podcasts, news articles, musical compositions, and computer software.  See the Copyright section in this guide for more information.

      Trademark: Trademark law creates usage rights in words, phrases, symbols, and other indicators that identify the source or sponsorship of goods or services. The owner of a valid trademark can stop others from using its trademark or a similar mark in connection with similar goods and services. The owner of a famous trademark may also stop others from using it in connection with dissimilar goods or services. The main purpose of trademark law is to protect consumers from confusion about the source of a particular good or service, and a secondary purpose is to protect companies that have spent time, effort, and money to create a positive association between their trademarks and their goods and services. Examples of trademarks include the word "Cheerios" for breakfast cereal, the Apple logo for computers, and YouTube's slogan "Broadcast Yourself" for video-hosting services.  Website domain names can also, in certain circumstances, be trademarks.  See the Trademark section in this guide for more information.

      Trade Secrets: Trade secrets law protects secret information that a company or other organization creates or compiles to give it an economic advantage over its competitors. A trade secret owner can stop others from acquiring its trade secret through improper means, such as theft, trespass, hacking, or breach of a confidentiality agreement, or from disclosing it to others under certain circumstances. Trade secrets law is aimed at encouraging research and innovation and maintaining high standards of commercial morality. Examples of trade secrets include the technical specs of an unreleased product, confidential customer lists, and manufacturing processes and formulas.  See the Trade Secrets section in this guide for more information.

      Patent: Patent law provides ownership rights and protection for unique processes, procedures, methods, inventions, and discoveries. It gives the patent owner the exclusive right to exploit (i.e. create, use, sell, distribute) the invention for a limited period of time (typically twenty years from the time of a patent application filing). Patent law's purpose is to spur innovation by giving inventors a financial incentive to invent. We do not cover patent law in this guide. For general information, see the U.S. Patent and Trademark Office's General Information Concerning Patents.

      Copyright

      A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.

      Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work.

      What Copyright Covers

      Let’s start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others – sometimes after highly contentious lobbying and debate – in the digital era.

      Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:

      • Literary works – which is basically prose, whether a news story, scientific paper, novel, poetry, or any other form of "words-only" (or words-and-pictures) creative work.
      • Musical works – both the lyrics and the music, whether from advertising jingles to symphonies.
      • Dramatic works – plays, including any accompanying music.
      • Pictorial, graphic, and sculptural works – photographs, drawings, paintings, and any other kind of two- or three-dimensional art.
      • Motion pictures and other audiovisual works – movies, television shows, YouTube videos, and any kind of multimedia.
      • Sound recordings – in addition to the copyright on words and music (above) a separate copyright protects a recording artist’s rendition of a work
      • Architectural works – blueprints and similar plans for buildings.

      For more information on works protected under copyright law, see the section in this guide on Copyrightable Subject Matter.

      Copyright Ownership

      Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms – for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright.

      Copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all – the law provides that copyright springs to life and protects an author’s work from the time the work is “fixed in a tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated . . . .” So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computer’s memory – they’re copyrighted. That’s it. They don’t have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress, although commercial publishers routinely do that, to show up in the database of copyrighted works; registration can also grant you certain additional rights. If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice.

      The law requires only that copyrightable works of authorship be "original" – but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright.

      So what is the catch? None, really, but there are two cardinal principles of copyright that – fortunately – limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they can’t do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.)

      Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you don’t own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but it’s not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright.

      As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

      Using the Work of Others and Licensing Your Work

      This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original author’s permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to use another’s copyrighted work in the course of creating your own copyrighted work.

      There have always been unspecific but sensible limits to this principle – you generally can't, for example, “quote” another’s work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine.

      In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyone’s reach. Some creators of copyrighted works – record labels and movie distributors most prominently – have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights.

      There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of “limited time,” but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.)

      Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An author’s contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of one’s employment. For more information, visit the sections on Licensing Your Content and Getting Permission to Use the Work of Others to use someone else's work.

      There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship.

      In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others’ creative works and to protect your own.

      • What Copyright Covers - Describes copyrightable subject matter and the rights granted under copyright.

      • Copyright Ownership - Explains different types of authorship, the registration and notice process, and how to license your work to others.

      • Using the Work of Others - Describes the types of works not covered by copyright, the doctrine of Fair Use, linking to another's work, getting permission to use another's work, the issues that arise from circumventing copyright controls, and copyright infringement.

      • Notice-and-Takedown - Outlines the steps involved in issuing and responding to a DMCA takedown notice related to copyrighted material and explains the immunity provision for user-submitted content under the DMCA.

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      What Copyright Covers

      Copyright law applies to any original works of authorship that are fixed in a tangible medium of expression, and gives copyright owners certain rights to control the use and distribution of their work. The following two sections explain the two concepts in more detail:

      If you are interested in information on who can own a copyright and how to use the copyrighted work of others, see the sections on Copyright Ownership and Using the Work of Others for discussion of these topics.

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      Copyrightable Subject Matter

      Copyright protection automatically applies to "original works of authorship" that are "fixed in a tangible medium of expression." The definition is less complicated than it sounds. If you create a blog post, podcast, or article, your work is covered by copyright the instant it is created in a tangible form, such as on paper, in a blog post, email, or video. You do not need to do anything more, such as signing or filing any papers or provide specific notice to the world that the work is covered by copyright. (You may however wish to provide copyright notice and register your copyright; see the section on Copyright Registration and Notice for more information.) Assuming it meets the requirements for protection, a work is automatically copyrighted in the U.S. and in over 160 other countries from the moment of its creation.

      Original Works of Authorship

      The level of creativity required for a work to be "original" is extremely low. A work satisfies this requirement as long as it possesses some creative spark, "no matter how crude, humble or obvious it might be." Feist Publ'ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). A work that originates from the author and contains any level of creative expression will satisfy the originality requirement. In the Feist case, the Supreme Court held that listing names alphabetically in a phone book is not creative; almost anything more creative than that probably qualifies.

      Sometimes, a creative work will have both original and unoriginal elements. In that case, the owner of the copyright to the work may assert rights over the original elements, but not the unoriginal elements. For example, a hip-hop music publisher recently sued the famous rapper, 50 Cent, claiming that his popular song, "In Da Club," infringed the publisher's copyright in a song called "It's Your Birthday" (written by another hip-hop artist named Luther Campbell). Lil' Joe Wein Music, Inc. v. Jackson, No. 06-16342 (11th Cir. 2007). The lyrics to "It's Your Birthday" include the phrase "Go [name], it's your birthday" with various proper names used in succession. 50 Cent's "In Da Club" also includes a section where he sings "Go Shorty, it's your birthday." The court found that the phrase "Go [name], it's your birthday" in Campbell's "It's Your Birthday" was not original -- the evidence showed that Campbell borrowed this phrase from chants popular at hip-hop nightclubs in the early 90s. Although the rest of Campbell's "It's Your Birthday" was protected original expression, the music publisher could not hold 50 Cent liable for infringement because he had only used the "birthday" phrase, which was not original to Campbell.

      Fixation in a Tangible Medium

      A copyrightable work is considered "fixed in a tangible medium" if it can be perceived, reproduced, or otherwise communicated for more than a transitory period. This includes any electronically readable formats (e.g., a blog post, email, or even storage in computer memory), audio recordings, and video. It does not matter whether the work has been "published" (i.e., made available to the world), as copyright protection is available to both published and unpublished works, so long as it is otherwise fixed in a tangible medium.

      Some examples include:

      • Text, audio files, video content, and photographs that you see on a website (or elsewhere, for that matter)
      • Sound recordings, including spoken and musical content of a podcast
      • Articles found in magazines and newspaper
      • Songs recorded on a CD, saved to a hardrive, or notated on sheet music
      • Literary works such as books
      • Musical works (including the accompanying words)
      • Dramatic works (including the accompanying music)
      • Choreographic works
      • Pictorial, graphic, or sculptural works
      • Motion pictures and other audiovisual works
      • Architectural works

      This list is not exclusive. Copyright protection can apply to any work fixed in any tangible medium of expression, whether this medium is currently known about or is yet to be developed, so long as the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. See 17 U.S.C. Sec. 102.

      Some works cannot be copyrighted; visit the section on Works Not Covered By Copyright for more information.

       

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      Rights Granted Under Copyright

      Copyright law grants you several exclusive rights to control the use and distribution of your copyrighted work. The rights include the exclusive power to:

      1. reproduce (i.e., make copies of) the work;
      2. create derivative works based on the work (i.e., to alter, remix, or build upon the work);
      3. distribute copies of the work;
      4. publicly display the work;
      5. perform the work; and
      6. in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

      See Section 106 of the Copyright Act.

      As a copyright owner, you can transfer each of these rights to others, either individually (e.g., just the reproduction right or just the display right) or as a group (all of the rights listed above). Additionally, although the exclusive rights are broad, copyright law does not give you an attribution right (i.e., the right to require that your name be associated with the work). Thus, if you decide to transfer or license any or all six of the rights listed above and wish to have your name be associated with the work, make sure to provide for attribution through the contract or license. For information on how to transfer or license rights under copyright, visit the Copyright Licenses and Transfers section of this guide. Note that if you are a minor, although you retain ownership over your own copyrightable work, state laws may restrict your ability to conduct business transactions, such as licensing and transfer.

      If someone else performs an action that violates one of these exclusive rights without your permission, you can sue that person or entity in federal court for copyright infringement. Bear in mind that certain prerequisites apply before you can file suit-- consult the Copyright Registration and Notice section of this guide for details.

      Copyright Duration

      You can exercise these six rights for the duration of the copyright term. For works created on or after January 1, 1978, this term will vary depending on who is the rightful copyright owner:

      • If you create the work on your own, the copyright term lasts from the date of creation to your death plus 70 years.
      • If the work qualifies as a work made for hire, the copyright term lasts until 95 years after publication or 120 years after creation, whichever is sooner.
      • If an anonymous or pseudonymous author creates the work, the copyright term lasts for 95 years after publication or 120 years after creation, whichever is sooner.

      Because copyright rules changed significantly in 1978, the copyright terms for works created prior to 1978 follow different rules. For an explanation of the rules relating to copyright term for works created prior to 1978, see the U.S. Copyright Office's official website. You can also find more information on when works fall into the public domain in the Works Not Covered By Copyright section of this Guide.

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      Copyright Ownership

      Copyright ownership encompasses several important concepts beyond the simple question of who initially created the work at issue. As discussed below, the person who creates a work is not necessarily the copyright owner. Many mistakenly believe that the creator of a work automatically holds the copyright. While this is often the case, exceptions do occur when an employee creates a work in the course of his or her employment, or if an independent contractor creates a work "made for hire." Moreover, if more than one "creator" is involved, the copyright might be shared. Further complicating the picture, the original creator(s) may have transferred their copyright to another person or entity.

      The following sections touch on each of these issues, as well as the advantages that come from registering a copyrighted work and providing copyright notice:

      • Works Owned by One or More Creators - This section describes copyright ownership when one or more individuals are involved in the creation of a copyrightable work.

      • Works Owned by Someone Else - If a work is created by an employee in the course of his or her employment or the work is created by an independent contractor and qualifies as a work "made for hire," then the employer or firm that commissioned the work will likely own the copyright. This section explains the "work made for hire" doctrine and discusses when it will apply.

      • Copyright Registration and Notice - This section explains how to use a copyright notice in conjunction with your work and how to register your work with the Copyright Office.

      • Copyright Licenses and Transfers - If you own a copyright, you have the ability to license or transfer all or a portion of your exclusive rights in the copyrighted work to another person or entity. This section helps you determine whether such an action is appropriate for you.

       

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      Works Owned by One or More Creators

      Copyright protection begins when an original work becomes fixed in a tangible medium of expression. (For more information on when a work is "fixed" and what qualifies for protection, see Copyrightable Subject Matter). As a general rule, the creator of the work (the author) owns the copyright.

      You are the author of a work if you create something original, as opposed to merely copying the work of another. For instance, you are the author of a blog post when you put the story/idea/information into "expression" through words. In contrast, merely coming up with an idea does not make you the author because nothing has actually been expressed.

      As the sole owner of a copyrighted work, you enjoy certain exclusive rights. However, if you collaborate with other authors to produce a final work, or if you allow another person to use copyrighted work in a collection of works, copyright law treats you differently.

      Joint Authorship

      When two or more authors materially contribute to a work, and each does so with the intent of creating a single work, the work is "jointly authored."

      A "material contribution" must be independently copyrightable (i.e., original, fixed in a tangible medium of expression, not non-copyrightable material like facts or ideas). If you only contribute non-copyrightable elements, such as ideas and suggestions, then you're not an author.

      For example, if a friend suggests a topic that you subsequently blog about, you alone own the copyright on the posting because your friend contributed nothing but non-copyrightable material (the idea).

      As another example, let's say you work with a group of journalists and someone routinely edits your work. If the editor is only fixing facts or making minor grammatical changes, you are still the sole owner of the copyright. However, if the editor's changes are more substantial, such that he is contributing original content or points of view, the work might be jointly authored.

      Finally, consider multiple individuals contributing to the creation of a website. One person does page layout, another handles graphics, and a third develops the underlying code. Copyright ownership will vest jointly in all of these contributors.


      Your Legal Rights As a Joint Author

      If you are a joint author, you hold an equal interest in the copyright with the other authors regardless of your actual contribution to the work.

      Technically speaking, you hold an undivided ownership share in the copyright. An undivided ownership share provides nearly all the rights of individual ownership, while also sharing the value of those rights. As a joint author, you retain the right to reproduce the work, create derivative works, distribute copies of the work, and publicly display or perform the work without getting the permission of the other joint authors. Of course, this goes both ways, and the other joint authors may do the same. You can also transfer your undivided ownership share without seeking approval.

      As a joint author, you cannot grant an exclusive license. Granting an exclusive license would directly harm the other joint authors, and thus you need their approval. See the section on Copyright Licenses and Transfers for more on the difference between exclusive and non-exclusive licenses.) However, you may grant non-exclusive licenses without approval from the other authors, which can lead to situations in which each author licenses the work to a different publisher.

      Finally, as a joint author you share in the value created through performance, distribution, or licensing of the work. Because each joint author only has a share in the copyright, any value must be distributed equally to all joint authors.

      What to Consider if You are Working with Other Authors

      You don't have to be restricted by the rules of joint authorship detailed above. Instead, you and your co-authors can enter into a collaboration agreement (a contract) to alter your rights and obligations. A collaboration agreement defines the responsibilities, compensation, and control of each author. Collaboration agreements may also designate how credit will be presented (e.g. the list of authors) and may outline the approval process to license or transfer an author's rights. As an example of a collaborative agreement, see Hollywood Comics' template.

      Collective Works

      A collective work consists of smaller works that are independently copyright-protected. Whereas a work of joint authorship is a single copyrightable work with contributions that were not intended to stand alone, a collective work compiles constituent parts that do (and often were originally intended to) stand alone.

      The person who assembles the collective work (the "collective author") owns the copyright to the selection and arrangement, but the owners of the copyrights to the underlying works retain their rights. See 17 U.S.C. 201(c), 17 U.S.C. 103(b).

      Copyright law gives the collective author the right to reuse the underlying works in a subsequent publication if that subsequent publication is:

      1. the same collective work;
      2. a revision of the same collective work; or
      3. a later collective work in the same series.

      See 17 U.S.C. 201(c). If the collective author wants to include the underlying works in a different manner than the above three categories, she needs to get express permission from each copyright owner.

      Some common examples of collective works are poetry anthologies, newspapers, magazines, and scholarly journals. In general, each discrete edition of the newspaper, magazine, or journal is a collective work made up of individual articles, some of which are written by freelancers. (For a discussion on the difference between the work created by a freelancer--or independent contractor--and an employee, see the section on Works Owned by Someone Else.) The freelancer owns the copyright to his individual contribution, and the publisher owns the copyright to the collective edition of the newspaper.

      Generally, a publisher can reprint an article from one issue in a later issue of its newspaper or magazine ("a later collective work in the same series"). However, when publishers publish in new media, the legal issues get more complex. In one case, the New York Times digitized articles from its print edition, put them in a database, and made them individually available online. The Supreme Court held that because the online version of the articles were viewable individually, they violated the freelance writers' copyrights because they were were "disconnected from their original context" and did not replicate the original selection and arrangement. See New York Times Co. v. Tasini, 533 U.S. 483 (2001). On the other hand, the Court suggested that preserving the collective work through microfilm would be a permitted revision because the microfilm maintains the original organization, layout, and context of the collective work. Thus, a magazine publisher can distribute digital scans of their print magazines, since the resultant work uses the "almost identical 'selection, coordination, and arrangement' of the underlying works as used in the original collective works." See Faulkner v. National Geographic Enters., 409 F.3d 26, 38 (2nd Cir. 2005).

      While most cases involve a collective work transitioning from print to digital publication, there is no reason to believe the same would not hold true in the opposite direction. Thus, if you created a web page of the most influential blog posts from 2001-2005, getting permission from each original poster to do so, you would need to retain the selection, coordination, and arrangement in order to also distribute a print version.

      What This Means For You

      When you allow someone else to use your work in their collective work, you are not giving the collective author the rights to do whatever she wants. If you are compiling a collective work, the permission an author gives you to use a work in your collective does not give you free reign to use that work as you please. You should pay particular attention to these points if you are publishing or distributing in multiple mediums. If you have a particular concern about how, where, and when works may be used, be proactive and ensure those details are finalized in a written contract. See the sections on Copyright Licenses and Transfers and Getting Permission to Use the Work of Others for more information.

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      Works Owned by Someone Else

      In general, if you create a work, you are the copyright owner of the work. However, if you create a work for hire, copyright law recognizes the person who hires you as the owner of the work. Your work may be a work for hire if you create it as an employee or as an independent contractor (a freelancer). However, if you are an independent contractor, the law makes it harder for the hiring party to obtain the copyright ownership of your work. While we discuss the work for hire doctrine below, you may wish to also consult Keep Your Copyright's excellent resource on Works for Hire for more information.

      Employee

      Your work falls under the work for hire exception if you create it in a conventional employment setting. For example, if you write blog posts as part of your job responsibilities, your employer owns the copyright to those posts.

      However, determining whether an employee creates a work in the scope of employment is not always so straightforward. For example, if you write a screenplay during your lunchtime, you own the copyright to the screenplay. As another example, a university professors, despite being an employee of the university, owns the copyright to her textbooks, scholarly articles, and blog posts. (See Columbia University's copyright policy and Trinity University's copyright policy as examples of how educational institutes are following this practice.)

      Independent Contractor

      Your work may also fall under the work for hire exception when you create it as a freelancer, if:

      • You and the person hiring you enter into a written agreement stating that the work shall be considered a work made for hire, and
      • it falls into one of nine categories of works outlined in the copyright statute. The nine categories of works are those "specially ordered or commissioned" for use as:
       
      1. a contribution to a collective work
      2. part of a motion picture or other audiovisual work
      3. a translation
      4. a supplementary work
      5. a compilation
      6. an instructional text
      7. a test
      8. answer material for a test
      9. an atlas

      The person who hired you as an independent contractor owns the copyright to the work only if these two conditions are met. Otherwise, copyright ownership remains with you. Therefore, as a freelancer, you own the copyright to your work unless you sign a contract explicitly designating it as a work for hire. This gives freelancers a considerable amount of bargaining power in negotiating the terms for a commissioned work.

      Issues to Consider

      The work for hire area is complex. Whether someone is an employee or independent contractor often turns on specific factual circumstances, and includes a discussion on factors outlined in the business section on Employee Versus Independent Contractor. Additionally, whether a work fits into one of the above nine categories hinges on sometimes difficult distinctions. You should safeguard against any future misunderstandings by being clear about your relationship in writing.

      For example, if you're contemplating a situation in which the person hiring you will own the copyright to your work (which falls into one of the nine categories), not only should you add express language about the work being "made for hire", but you should also consider bargaining for additional compensation due to giving up your copyright ownership.

      On the flip side, if you are commissioning someone to make a work "made for hire," make sure that the work fits into one of the nine categories listed above. If the work clearly does not fit into one of those categories, consider having the freelancer assign the copyright to the work to you as part of the agreement, or adjust the payment to reflect your lack of copyright ownership.

      You may want to consult a lawyer before entering into an relationship where you will be creating works for someone else or hiring someone to create work for you. Refer to the section on finding legal help to explore your choices.

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      Copyright Registration and Notice

      Although you do not need to use a copyright notice or register your work in order to hold a copyright in the work, notice and registration give you a number of benefits, which we discuss below.  (For more information on the basic requirements of copyright ownership, see the section on Copyright Ownership in this guide.)

      Copyright Notice

      By putting a copyright notice on your work, you inform the public that your work is protected by copyright. Notice allows someone to contact you for permission to use your work. Notice also limits the ability of someone who infringes your work to claim they didn't know of the copyright's existence.

      A copyright notice of must be affixed (or must exist in a place) so that it “give[s] reasonable notice of the claim of copyright.” A notice of copyright typically includes the copyright symbol, ©, the year of first publication, and the name of the owner of the copyright. For example, © 2008 Berkman Center for Internet & Society.

      The copyright symbol may be replaced by the word “Copyright” or the abbreviation “Copr.” For example, Copyright 2008 Citizen Media Law Project and respective authors.

      You do not need to register your work before putting notice on it. Note that if your work is a sound recording embodied in "phonorecords", you will need to complete a separate form for copyright notice.

      Registration

      Copyright registration is not a prerequisite to copyright protection. However, registering a copyright in your work with the U.S. Copyright Office provides the following advantages:

      • A public record of your copyright claim in your work: A public record serves as an even stronger notice of your ownership claim; notice is provided to the entire world and is not limited to those who see your work with the copyright notice attached.
      • The ability to file suit to enforce copyright in federal court: You must file an application for registration and have it either granted or refused before you can sue, even if the infringement has already occurred.
      • Evidence that your copyright is valid: Filing your registration within 5 years of publishing your work will help you in the event that you need to bring a copyright infringement lawsuit in court. Your registration will provide prima facie evidence (i.e. satisfy a basic level of proof) of the validity of your copyright. This does not mean that your claim of copyright ownership is guaranteed. However, instead of having to prove that you are the actual copyright owner, the other party will have to prove that you are not. While this may seem like a semantic distinction, you are in a stronger position given that the presumption of copyright ownership is on your side.
      • Statutory damages and attorney's fees: If you file your registration of copyright within 3 months of publishing your work, or at any time prior to an infringement, your registration allows you to recover statutory damages and attorney’s fees. The statutory recovery provision may be of help because copyright owners often find it difficult to calculate and prove exactly how an infringement has hurt them. When applicable, statutory damages for infringing uses of a work usually entitle you to a pre-determined amount of damages (ranging from $750 to $30,000 per work infringed). 17 U.S.C. § 504(c).

      For more on why you might want to register your works, please see Sarah Bird's excellent post, Why You Should Go Through the Trouble of Registering Your Copyright When Everyone Tells You That Your Work Is Protected Automatically.

      Bear in mind that when you register a work, the Copyright Office does not validate the accuracy of your copyright claim. Also, registration (and copyright law in general) does not protect against similar, independently created works. A person can create a work that is substantially similar to yours without legal ramifications, so long as that person created the work without any reliance on your work (i.e., never read, saw, heard about it, etc.).

      Registering Online Works

      Online works (including web pages) provide a unique challenge for those wishing to register their work. Online works are typically updated frequently, with content changing regularly. Unfortunately, under copyright law, each substantially updated version (or, in legal terminology, derivative work) must be registered separately. For more details on the registration of online works, see the U.S. Copyright Office's Circular #66: Copyright Registration for Online Works.

      The U.S. Copyright office does, in some instances, provide the ability to register copyrights in a group (i.e., a single registration covering multiple versions). Specifically, you can register an automated database, a serial (published weekly or less often), and a newsletter (published more often than weekly) to get protection for multiple versions. Some web sites have registered under these classifications, but it remains to be seen if/how the contents will be protected. For more details on these alternative types of registration, see the U.S. Copyright Office's Circular #62: Copyright Registration for Serials and Circular #62a: Group Registration of Newspapers and Newsletters on Form G/DN.

      How to Register

      The process of registering a copyright with the U.S. Copyright Office is relatively straightforward. Sarah Bird at Seomoz.org has a fantastic resource on Sample Forms and Strategies for Registering your Online Content.

      There are four basic steps to the registration process:

      1. Determine which form to use and fill it out
      • For written works (which also includes computer programs and online works), use Form TX (for a version of the form with detailed instructions click here).
      • For pictorial or photographic works, use Form VA (version with instructions here).
      • For other types of works, see the U.S. Copyright Form Page to determine which form is required.

      Note: For compilations, use the form that best fits the majority of the work.

      2: Determine how many copies are needed

      • Written works:
        • For unpublished works, provide 1 copy.
        • For published works, provide 2 copies.
        • For online works, either provide a labeled computer disk containing the work or a printed version of the work.
        • For more specific details about these and other written works, see the "deposit requirements" link located at the U.S. Copyright Office's Literary Works page.
      • Pictorial or photographic works:
        • For pictorial or graphic works, provide 2 copies.
        • For photographic works, provide 2 copies (1 if the work is unpublished).
        • For more specific details about these and other visual art works, see the "deposit requirements" link located at the U.S. Copyright Office's Visual Works page.

      As part of the Copyright Office's new "Electronic Copyright Office" ("eCO") system, certain works can now be uploaded instead of physically mailed when registered online. For more on this process, visit the eCO page.

      Note: copies are non-returnable.

      3. Pay the fee

      • The current cost for registering a copyright is $35 for electronic filing and $45 for paper filing.
      • Checks should be made payable to "Register of Copyrights."

      4. Mail the package

      The mailing address is:

      Library of Congress Copyright Office
      101 Independence Avenue, S.E.
      Washington, D.C. 20559-6000

      Best Practices for Protecting Your Work

      • Use a copyright notice with your work. This takes little effort and can provide significant benefits to you.

      • Consider registering your online work within three months of publication. The benefit of getting statutory damages if you sue someone successfully for copyright infringement may outweigh the costs of registration.

      • Look into alternative forms of registration. If your work could be categorized as a "serial," "newsletter," or "automated database," you may be able to get protection for multiple versions without the cost and effort involved in registering each individual iteration.

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      Copyright Licenses and Transfers

      A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles – any “original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. For more information on copyright creation and ownership see the Copyright Ownership section of this legal guide.

      If you are the copyright owner of a work (and you likely will be if you created the work), such as an article, a blog post, a photograph, or a video, you can authorize others to use it. You can do this by transferring to the person or entity that wants to use your work any or all of your rights as a copyright owner, or any subdivision of those rights. Alternatively, you can license any or all of those rights (or any subdivision of them) to that person or entity.

      As the person granting the transfer or license, you have a great deal of freedom in how to structure the transaction. How you choose to do so can have a substantial impact on your ability to make money from the work, the amount of control you retain over it, and the costs associated with the transaction. Often, it will make sense to hire a lawyer in order to deal with such a transaction because of the complexity of the subject-matter, the potential flexibility of the transaction, and the potentially high stakes. On the other hand, there are three models or approaches that generally do not require the assistance of a lawyer: an "all rights reserved" approach, using a Creative Commons license, and a dedication to the public domain. Whether one of these three approaches or some other approach is best for you is a matter of personal preference. In the discussion that follows, we go into more detail to give a sense of the issues involved and to explain how you can effectively transfer or licensing your work.

      The decision about whether and how to license or transfer your work will depend on your own personal preference. There are a number of factors that you may want to consider in reaching your decision, including the potential for making money from the work, the extent of control retained over the work, the costs involved in the licensing/transfer transaction, and the permanence of the measure. These and other issues are addressed below.

      Making money from your work

      One obvious benefit to licensing/transfer is that people or businesses may be willing to pay you for use of your work. In some instances, this payment can be a significant source of income and may help support your project or website as well. In the How to Effectively Transfer or License Your Work section, we discuss three models for licensing/transferring your content: an "all rights reserved" model, using a Creative Commons (CC) license, and dedicating your work to the public domain. The most direct way of seeking revenue from exploitation of a work is to reserve all rights with respect to the public at large and then to pursue selective licensing or transfer deals in exchange for money. This is because granting a CC license to the public does not involve payment in return, although it does not rule out granting other licenses in exchange for money, and a public domain dedication obviously gives up all your rights to exploit the work. In contrast, if you are interested in contributing to, or gaining extra exposure in, an artistic, intellectual, business, or other community (perhaps with indirect financial benefits), a CC license or public domain dedication might be more appropriate.

      One thing to keep in mind is that a full transfer of your rights will probably fetch more money in the short term than a non-exclusive license, but this comes with a corresponding sacrifice in terms of control of the work and personal exploitation.

      Another thing to consider is whether your goals in relation to your work may change over time. Your aim now might be to gain exposure, but you might wish to commercialize your work down the line. Granting broad permission for others to freely use your work (through a CC license or similar) now may curtail your ability to commercialize the same work in the future. 

      Retaining control of your work

      Retaining control of your work is another significant issue. The important thing to remember in this regard is that you are not presented with an "all or nothing" scenario. You have significant freedom in how you structure your transfer or license, and the amount of control you retain is largely up to you. For details, please see the Which Rights Can Be Transferred or Licensed section.

      For those seeking more control, an "all rights reserved" model combined with selective licensing transactions may be the best route, but this may necessitate the help of a lawyer specializing in intellectual property licensing. A CC license offers slightly less control (because the license is given to the public at large and generally allows sub-licensing on the same terms), but it is much lower cost because the entire process is automated on the CC website. That said, you still retain significant control with a CC license. For instance, you can grant the public a license to copy and distribute your work, but bar them from making derivative works (adaptations) of it or using it for commercial purposes. For more on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.

      Are there any costs involved?

      Different costs are involved based on which approach you take. For instance, granting a CC license to the public is free, but you will not make money directly from the license. Because a CC license is non-exclusive, you can still enter into one-on-one transactions for money, but these are more complex and likely require the assistance of a lawyer, which is expensive. Registering the transfer with the Copyright Office, an optional step which some copyright transferors take to protect their interests, also carries a fee (see Copyright Office Fees). Likewise, reserving your rights with regard to the public at large and transferring or licensing your rights in one-on-one transactions for money is likely to be expensive for the same reasons. You can dedicate your work to the public domain at no cost, but by doing so you give up all control and prospect of future remuneration.

      If I transfer or license my work, is this permanent?

      Not necessarily. The length of time that a grant lasts will depend on the transfer or license arrangement you enter into. For instance, you can grant a transfer or license your rights in relation to your work for a specified duration of time (see the Which Rights Can Be Transferred or Licensed section). If you do not specify an end date in the executing document, or even if you if specify that the transfer or license is permanent and irrevocable, under the Copyright Act the grant is generally terminable by your (or your successors) within a five year window starting 35 years after the execution of a grant (see the Terminating a Transfer or License section).

      It is also worth noting that if you grant a non-exclusive license to a person, and do not receive "consideration" (payment or some other kind of benefit in exchange for the grant) from them, this license is revocable (see the How to Effectively Transfer or License Your Work section).

      How this all works with a CC license is not 100% clear. All varieties of CC license have a clause saying that the license grant is non-revocable. According to the CC FAQ:

      This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license. You can stop distributing your work under a Creative Commons license at any time you wish; but this will not withdraw any copies of your work that already exist under a Creative Commons license from circulation, be they verbatim copies, copies included in collective works and/or adaptations of your work.

      It is not entirely clear whether the contractual language purporting to make the license non-revocable would stand up to a legal challenge based on the automatic termination right granted by the U.S. copyright law or the argument that a CC license is a non-exclusive license made without consideration. In any event, it is probably safest to assume that a CC license is permanent, so you should think very carefully about whether or not you are happy with the public making use of your work in the way described in the license.

      If I license or transfer my work, does it affect what I can do with the work?

      It depends. If you transfer all or one of your rights to someone else, then you may no longer exercise those rights. If you grant an exclusive license to someone with regard to a particular right or group of rights, then you are similarly prohibited from exercising those rights. But if you grant a non-exclusive license to someone else to exercise a right or group of your rights, then you are free to continue exercising the right or group of rights and authorizing others to do so. A CC license is a non-exclusive license, so granting the public a CC license does not affect your ability to use your work. For more information on what constitutes a "transfer," an "exclusive license," and a "non-exclusive license," please see the Understanding the Difference Between a Transfer and a License section.

      Can others use my copyrighted work without being granted a license or transfer?

      Yes. United States copyright law allows others to make "fair use" of your work without permission. Under the fair use doctrine, third parties are permitted to use your copyrighted work without your permission for limited and "transformative" uses, including criticism, commentary, news reporting, parody, and teaching. For example, if a blogger quotes a paragraph from an article or post on your website and compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without a license. Nevertheless, fair use is a notoriously fact-sensitive defense to a copyright claim, and it is difficult to determine beforehand whether a particular use is a fair use. See the Fair Use section for more details. For this reason, many people may prefer to seek out a license before engaging in a use that might be a "borderline" fair use. When you grant someone permission to use your work via transfer or licensing, the idea is that you are permitting them to engage in a use that would not be "fair" under the law.

       

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      Understanding the Difference Between a Transfer and a License

      A transfer of copyright is a conveyance of ownership, much like the sale of personal property. When you transfer your entire interest in a copyrighted work, or one or more of your exclusive rights under copyright, you give up all claim to the right(s) you convey (except as explained in the Termination of a Transfer or a License section). The recipient of the transfered right(s) may:

      • exercise the right or rights transfered;
      • authorize others to exercise the right or rights transfered via another transfer or via license; and
      • sue for copyright infringement of the transferred right(s).

      A license is a grant of permission to exercise your rights under copyright. In copyright terminology, there are "non-exclusive" and "exclusive" licenses. When you give someone a non-exclusive license, you give the licensee permission to exercise the right in question, but you also reserve the right to continue exercising it yourself and to authorize others to do so. When you give someone an exclusive license, you promise that the licensee and only the licensee may exercise the right. This means that when you grant an exclusive license, even you may not exercise the granted right, nor may you authorize anyone else to do so.

      Copyright law treats an exclusive license like a transfer. Therefore, the recipient of an exclusive license to a right or right(s) may:

      • exercise the right or rights licensed;
      • authorize others to exercise the right or rights licensed via a transfer or license; and
      • sue for copyright infringement of the licensed right(s).

      The recipient of a non-exclusive license may exercise the right or rights licensed, but MAY NOT:

      • authorize others to exercise the right or rights licensed via transfer or license without permission of the copyright owner; and
      • sue for copyright infringement of the licensed right(s).

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      Which Rights Can Be Transferred or Licensed

      If you are the copyright owner of a work, you can transfer, or license others to exercise, some or all of the rights listed in Section 106 of the Copyright Act. These include:

      1. the right to reproduce (i.e., make copies of) the work;
      2. the right to make derivative works based upon the copyrighted work (this basically means the right to make adaptations of the work);
      3. the right to distribute the work;
      4. the right to display the work;
      5. the right to perform the work; and
      6. the right to perform the work through digital audio transmission (in case of sound recordings).

      For instance, say that you've uploaded an e-book that you have written to your website in PDF format. You could grant a user of your website permission to download and make copies of this book, but prohibit him or her from distributing your e-book to other people.

      You can further limit the rights granted based on type of media, geographical effect, and time (among other possible criteria). Three illustrative examples follow.

      • Limiting rights by media type -- Suppose you create original video content for your website or blog. You can craft a license for users of your site that allows them to reproduce and display your video content on their websites, while simultaneously disallowing them from reproducing your video in another medium, such as a film.
      • Limiting rights by geographical effect -- Suppose your photograph of an important event is so unique and powerful that it becomes famous throughout the world. You might grant Time magazine the right to reproduce and distribute the photograph in North America, while selling the same rights for Europe and Asia to another company. For more on the implications of authorizing publication of your work as part of a "collective work," such as a magazine, periodical, or anthology, see the Collective Works section of this Guide.
      • Limiting rights by time -- Consider the example immediately above, but now you are granting book rights (i.e., the right to reproduce and distribute the photograph in book form) in North America to a publishing company. You could grant exclusive book rights in North America to Company A for 25 years. After 25 years have elapsed, you could then exercise the book rights yourself or license them to Company B for the remainder of the copyright term (or any duration of time less than that). For more on the copyright term, please see the How Long Does Copyright Last? section of this Guide.

      The particular examples given above are not important, nor necessarily representative of all the possibilities. The point is that you have many options in how you choose to define the rights that you transfer or license. Because of this flexibility, crafting a license can be complex and may require the assistance of a lawyer to draft terms that reflect your specific preferences as to how other people use your work. On the other hand, a Creative Commons license gives you a great deal of flexibility in terms of choosing which rights to grant others and which to withhold, without the complexity of drafting your own agreement or the expense of hiring a lawyer.

      Note: You can transfer (or grant an exclusive license to) all of the Section 106 rights together. By doing this, you transfer ownership of the "copyright" itself -- i.e., all rights in the work, except for the right of termination.

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      How to Effectively Transfer or License Your Work

      Below are three models or approaches to transferring or licensing your work that are relatively straightforward and therefore can be accomplished without the assistance of a lawyer. One caveat is that the first approach, the "all rights reserved" model, could be used in conjunction with sophisticated transfer/licensing transactions on a case-by-case basis, in which case the assistance of a lawyer would be more indispensable.

      "All Rights Reserved" Model

      You might decide that, although you want to display your work online and/or distribute it to your users, you do not want to grant to those users any rights beyond those necessary for their personal consumption of your work. In that case, you could adopt the "all rights reserved" model. This approach is not really a transfer or a license -- rather it is an effort to limit the scope of the implied license you give to your users when you post and/or distribute your work.

      All you need to do is affix the standard copyright notice to each page of your website (and/or to any other materials you distribute) and add a short statement indicating that you intend to reserve all your rights. For instance, you may affix to each page of your website the following statement: "Copyright © [Year], [your name or name of applicable entity], all rights reserved." If you are distributing a podcast, you might want to include a short statement at the beginning of the podcast indicating that you "reserve all rights" in it. As a general matter, you may want to alter the rights reservation statement on your site to indicate that you are reserving rights only in the content specifically created by you.

      Displaying an "all rights reserved" notice will not prevent fair use of your work.

      Note: the concept of an "all rights reserved" model is adapted from the Podcasting Legal Guide © 2006 Colette Vogele of Vogele & Associates, Mia Garlick of Creative Commons and the Berkman Center Clinical Program in Cyberlaw. This Guide was produced as part of the Non-Residential Fellowship Program of the Center for Internet & Society at Stanford Law School.

      Using a Creative Commons License

      Creative Commons licenses give you the ability to allow some reuse and redistribution of your work by others without giving up all control. They are licenses that you grant to the public at large at no cost, and they specify to what uses the public may put your work. There are six main types of Creative Commons licenses to choose from, and they vary based on several factors, such as whether the licensee (the person to whom you give the license) can create derivative works (i.e., alter, remix, or build upon your work) and whether commercial redistribution of the work or its derivatives is permissible. They all require attribution - that is, the licensee must credit you as the author in the way you designate.

      Note: the most recent 3.0 versions of these licenses are not specific about the form of attribution. As a matter of best practices, you may want to require that the attribution include the name of your site and/or organization and a link back to your site.

      The process of choosing the license that fits your needs is automated on the CC website. Once you choose a CC license, applying it to your online work is simple. According to the CC FAQ:

      Once you have selected your license, and if you are applying it to an online work, follow the instructions to include the html code in your work. This code will automatically generate the "Some Rights Reserved" button and a statement that your work is licensed under a Creative Commons license, or a "No Rights Reserved" button if you choose to dedicate your work to the public domain. The button is designed to act as a notice to people who come in contact with your work that your work is licensed under the applicable Creative Commons license. The html code will also be include the metadata that enables your work to found via Creative Commons-enabled search engines.

      For an example of how this works, the Citizen Media Law Project (CMLP) has licensed the content of its website under a CC Attribution-ShareAlike 3.0 License, a notice about which is displayed at the bottom of every page of our website as a footer. It allows users to copy, distribute, and remix the CMLP's original content, so long as (1) it is attributed to the CMLP in the manner specified; (2) it is not used for a commercial purpose; and (3) adaptations are distributed under the same or similar license.

      Before you apply a Creative Commons license to your website, you need to consider whether or not you are the copyright owner of the materials that appear on your website. You can only apply a CC license to materials that you have created or for which you have express permission of the copyright owner(s) to license under a CC license. If everything appearing on your website does not fit this criteria, you might consider applying a CC license to only some elements of your website, such as your text and photographic images, while not applying the license to other elements to which you may have a limited license, such as photographs taken by a colleague or ad-related material. In that case, it is critical that you identify which elements of your website are subject to a CC license and which parts are not. For a great page that discusses issues you need to think about before applying a CC license to your website or other copyrighted material, see CC's Things to Think About page.

      One side benefit of using a CC license is that you can incorporate Creative Commons metadata into your website, allowing users to find your work through customized Creative Commons searches via Google or other search engines.

      Licensing your work under a CC license does not preclude you from entering into a separate license agreement with someone else, for instance for using your work for commercial purposes. The details of such a license, including whether or not you could grant the licensee exclusive rights to distribute the work commercially, would depend upon what type of CC license you initially select. There are services such as Lisensa designed to work in tandem with CC licenses to display commercial license terms and automatically collect license fees. Lisensa, however, takes a 10% cut of all royalties and is also fairly limited in scope at the present time. You may want to consult a lawyer when dealing with the sometimes complicated intersection between CC licenses and commercial licenses.

      For more detail on what constitutes a "commercial use" and a "non commercial use," please see CC's Discussion Draft Noncommercial Guidelines.

      Dedicating Your Work to the Public Domain

      You may wish to dedicate all of your rights of copyright ownership in a work to the public. The public domain model could also be described as a "no rights reserved" model. You can do this by simply be putting a dedication notice on the work with language like "This work to which I own copyright is hereby released into the public domain" or "Everything on this site to which I/we own copyright is hereby released into the public domain." Alternatively, you can use a Creative Commons Public Domain Dedication.

      More Complicated Licensing Models

      The two sections listed below are mostly of academic interest if you choose one of the three models mentioned above, but they may be of more assistance if you choose to pursue transfer or licensing deals on a case-by-case basis. They give details about the formal requirements for a valid transfer or licensing contract, as well as information about the circumstances under which a copyright owner is entitled to terminate a transfer or license. These summaries of the law necessarily reduce some of the complexities involved, and readers are advised to consult with a lawyer when presented with issues of formal validity, consideration, and termination/revocation.

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      Creating a Written Contract to Transfer or License Rights Under Copyright

      Transfers and Exclusive Licenses

      A transfer or exclusive license of any or all rights under copyright must be in writing and signed by the owner of the rights conveyed (or the owner's duly authorized agent). The writing should describe the nature of the rights conveyed. As a copyright owner, you should specifically carve out any rights that you wish to retain in the work, especially with regard to exploitation of the work in new media or technological formats developed in the future. 17 U.S.C. Sec. 204(a).

      The U.S. Copyright Office does not have any special forms for the contract through which you transfer right(s). Copyright law provides for the recordation of transfers of copyright ownership in the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it provides certain legal advantages, and may be required to validate the transfer as against third parties. For more information on recordation of transfers and other documents related to copyright, see the Copyright Office's Circular 12: Recordation of Transfers and Other Documents.

      Writing is not required for a non-exclusive license, because by defining a "transfer of copyright ownership" to exclude non-exclusive licenses, 17 U.S.C. Sec. 101 relieves non-exclusive license from the operation of U.S.C. Sec. 204(a). The grant of a non-exclusive license can be oral or inferred from conduct.

      No writing is required for transfers of copyright "by operation of law." 17 U.S.C. Sec. 204(a). The Act does not specify what is meant by "by operation of law", but in general a copyright is conveyed "by operation of law":

      • when it is bequeathed by will;
      • when it passes as personal property by the applicable laws of intestate succession; or
      • by court order in bankruptcy proceedings.

      Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property, as well as terms of contracts or conduct of business. For information about relevant state laws, consult an attorney.

      Non-exclusive Licenses

      Non-exclusive licenses do not require a writing in order to be valid, and the existence of a licensing arrangement can even be implied from conduct (an "implied license"). Your conduct may give rise to an implied license when it indicates that you intend to extend a license to those using your work, but you never agree to specific terms for the license. The user of your work acquires some right to use it, but only to the extent that you would have agreed to, had you negotiated an agreement.

      Generally, the custom and practice of the relevant community or industry determine the scope of an implied license. For example, if you send a letter to a newspaper editor entitled "Dear Editor," under customary practice, the editor of the newspaper has an implied license to publish your letter in the newspaper. For more information about and examples of implied licenses in the Internet context, see Cyberspace Law for Non-Lawyers, Lesson 7 - Copyright 6.

      Implied licenses may be important in situations where you hire a freelancer to create a work for you. Imagine, for example, that you hire a website designer to design your website. Neither of you knows much about copyright law, and you fail to agree (even orally) about who owns copyright to the designer's work. You would not own the copyright as a work made for hire because there is no written agreement (please see the Work Made for Hire section of the guide), but a court might still rule that you have an implied license to exploit the work for those uses reasonably within the contemplation of the designer at the time you both entered into the freelance arrangement (probably the right to reproduce and display the website, perhaps the right to create adaptations). Note that in this example, the web designer is the creator (and thus the owner) of the copyrighted work, and you are the person taking advantage of the implied license.

      For another example, imagine that you prepare a weekly email newsletter that highlights your best postings for the week. This newsletter contains your copyrighted work (text, images, maybe video). If you email this to your subscribers, a court might find that you have granted them an implied license to share the newsletter with friends and colleagues through email forwarding.

      As a general matter, it is a good idea to reduce a non-exclusive license arrangement to writing, just like an exclusive license or transfer. It helps you better protect your rights to the work, and allows you to structure your arrangement with licensees with greater clarity and precision. On the other hand, you might not want to bother users with a written license notice in the case like that of the email newsletter, so long as your subscribers' foreseeable uses don't particularly bother you.

      Do I Have to Give or Receive Anything of Value to Make a Transfer or License Valid?

      In general contract law, the parties to a contract each have to give the other "consideration" in order to make the contract legally binding. "Consideration" is something that each party to a contract gives to the other party in exchange for that other party's promise or performance of the contract.

      Transfers of rights under copyright, including exclusive licenses, do not require consideration in order to be valid. Therefore, while it is common for the transferee (the party obtaining the right or rights under copyright) to pay the copyright owner for the grant of rights, payment or other benefit is not required.

      Nonexclusive licenses also do not require consideration in order to be valid. However, nonexclusive licenses are revocable (meaning the copyright owner can revoke the license at any time) in the absence of consideration. This means that, whether or not you set a fixed time limit for the duration of the non-exclusive license in the licensing agreement, you (as the copyright owner) can revoke the license at any point if you do not receive consideration for it. Conversely, if you (as the copyright owner) receive consideration in return for the grant of the license, then you cannot revoke the license unless you provide for revocation in the license agreement.

      Note, however, that consideration for the grant of a license does not have to be something valuable, and it certainly does not have to be equivalent to the market value of the grant. Consideration is mostly a symbolic gesture. If the licensee gives up anything in exchange for the grant of the license, then that likely would qualify as consideration.

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      Terminating a Transfer or License

      For works created after 1978, section 203 of the Copyright Act provides that the creator (or "author" in copyright terminology) of a work may terminate a transfer, exclusive, or non-exclusive license of any or all rights under copyright for that work during the five-year period:

      • starting at the end of thirty-five years from execution of the grant;
      • for a grant that covers the right of publication of a work, the five-year period beginning at the earlier of:
        • the end of thirty-five years from the date of publication of the work; or
        • the end of forty years from the date of execution of the grant.

      To terminate a grant or license, you must serve notice of termination upon the grantee (the recipient of the transfer or license) or the grantee's successor in title (meaning the person or entity to whom the original grantee transfered his interest). The notice must be in writing and state the date of termination, which must fall within the five-year period outlined immediately above. You are required to serve the notice not less than two, nor more than ten, years before the termination date designated in the notice. Additionally, you need to file a copy of the notice with the Copyright Office prior to the termination date.

      To be valid, a termination notice must comply with the form, content, and manner of service set out in the Copyright Regulations. You can find these regulations at 37 C.F.R. 201.10.

      Joint Works, Works Made for Hire, and Deceased Authors

      In case of a work of joint authorship, a grant executed by two or more joint authors may be terminated, pursuant to the section 203 of the Copyright Act, only if a majority of the joint authors who executed it agree to the termination. For more on works of joint authorship, see the Joint Authorship section.

      When the creator of the work is deceased at the time of the five-year statutory period for termination discussed above, her successors in interest (surviving spouse and/or children; the executor, administrator, personal representative, or trustee in case there is no spouse or surviving children) may exercise the right of termination. The rules governing who owns what share of the termination interest and who must agree in order to effect termination are complex, and a lawyer's help will usually be necessary under these circumstances.

      Works that qualify as works made for hire are not subject to termination by the employee or freelancer. For more on works made for hire, please see the Works for Hire section.

      Note: Non-exclusive licenses granted without consideration can also be revoked at will, but it may be difficult to determine whether valid consideration has been granted. See the Creating a Written Contract to Transfer or License Rights Under Copyright section for details.

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      Using the Work of Others

      When you use someone else's work without their permission, you face the prospect of a lawsuit for copyright infringement. Luckily, this unappealing outcome is not inevitable. Some awareness about copyright law, a little investigation, and a bit of flexibility can help you avoid claims of infringement.

      First, you should consider whether the material you plan to use is protected by copyright. Many things are not copyrightable, such as facts and ideas, and therefore you can use them without worrying about infringement. Additionally, even works that qualify for copyright protection will eventually fall into the public domain after a certain period of time. For more information on this topic, refer to the section on Works Not Covered By Copyright.

      Second, if you've determined that the material you wish to use is protected by copyright, you should consider seeking the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. See the section on Getting Permission to Use the Work of Others for guidance on how to do this.

      Third, the doctrine of fair use may make it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarship. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Refer to the section on Fair Use for more information.

      Fourth, rather than directly copy the work itself, you may decide to link to the material, if it is available online, is sufficient and thus avoid potential copyright infringment claims entirely.  The section on Linking to Copyrighted Materials explores the legal issues that might arise from linking to or using a link to embed other online works.

      Another issue you may face occurs when the work is protected by digital rights management systems (DRM) or some other technology that controls access to the work. You cannot circumvent these access controls without the permission of the owner of the copyright, and no fair use defense is available to you. We address these issues in the Circumventing Copyright Controls subsection.

      If you are dealing with a work that contains a DRM system, or if the work is not in the public domain and you do not believe that the doctrine of fair use covers your use of the work, you will need the express and specific permission of the person who owns copyright in that material. We will discuss the process of getting permission to use someone's work from making informal requests to seeking formal licenses.

      Finally, the section on Copyright Infringement goes through the elements of a copyright infringement claim and also discusses the intersection of plagiarism and infringement.

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      Works Not Covered By Copyright

      You may want to use or incorporate someone else's work into your own. While the works of others may be protected by copyright, there are a class of works that fall outside the scope of copyright law. The following categories of work are not eligible for copyright protection, regardless of when they were created and whether or not they bear a copyright notice.

      Additionally, even works that qualify for copyright protection fall into the public domain after a certain period of time.

      Facts

      You can use facts in your online work without the fear of liability because facts are not protected under copyright law. As we explain in the section on Copyrightable Subject Matter, copyright protection applies to "original works of authorship." Although the level of creativity required to be "original" is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are noncopyrightable facts.

      However, there may be situations in which a compilation of facts may be protected if the creator of the original publication selected, coordinated, or arranged the facts in an original way. For example, a sports almanac may arrange baseball scores in a creative way, a genealogy chart may arrange birth dates in an original way, or a cookbook may arrange ingredients in a creative and original way as part of its recipes. In each of those instances, the creator of the work would have a copyright in the creative arrangement of the facts, but not the facts themselves.

      Works Created by the United States Government

      You can use any work of the United States Government because copyright law does not cover such works. Works of the United States Government include:

      • federal judicial decisions
      • federal statutes
      • speeches of federal government officials given in the course of their employment
      • federal government press releases
      • federal government reports (such as census reports)

      However, note that copyright law may protect works created by others that the United States Government receives by assignment, bequest, or otherwise.

      While federal copyright law does not expressly apply to the works of state governments, state laws are similarly uncopyrightable. See Tim Armstrong's analysis in Can States Copyright Their Statutes? for more information. However, be aware that Oregon recently asserted copyright ownership "in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law." See our blog post, Oregon Claims Copyright in Its Statutes -- Well, Sort Of, discussing the validity of Oregon's copyright claim.

      Works Not Fixed in a Tangible Form of Expression

      Copyright protection only applies to "original works of authorship" that are "fixed in a tangible medium of expression." Consequently, if you attend an improvisational speech that has not been notated or recorded, you may publish the speech in your online work without fear of liability. (However, you should cite the speech in order to avoid the taint of plagiarism.)

      Ideas, concepts, or principles

      Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven't actually expressed anything. You become the copyright owner only when you put that idea into "expression" through words (e.g., in a blog post) or other tangible form (e.g., in a video, a photograph, or a podcast).

      For example, Einstein's theory of special relativity is not copyrightable because it is an idea (or concept or principle). However, Einstein's article, "On the Electrodynamics of Moving Bodies," in which he explained and expressed the theory, was copyrightable.

      If you come across an idea/concept/principle, you can use it in your online work with out fear of liability as long as you do not use the form in which it is expressed (which may be copyrightable). However, you should consider citing to the source in order to avoid a claim of plagiarism.

      Words, Phrases, or Familiar Symbols

      In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.)

      While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word "Apple," the slogan "Got Milk?" and the Nike symbol of the "swoosh." See the Trademark section for more information on using a trademark protected word, phrase, symbol, or other indicator that identifies the source or sponsorship of goods or services.

      Works in the Public Domain

      You can use any work in the public domain without obtaining permission of the copyright owner. A work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then-applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as "Everything on this site to which we own copyright is hereby released into the public domain," or by using the Creative Commons Public Domain Dedication.

      Determining whether any particular work is in the public domain is a complex task, and the answer often depends upon when the work was published, whether it was published with notice, and whether the copyright holder subsequently registered the work. However, there are some rules of thumb that will help you with this analysis:

      • First, any work that was published before 1923 is in the public domain.
      • Second, any work published without a copyright notice between 1923 and 1977 is in the public domain.
      • Third, works created after 1989 generally are not in the public domain, regardless of notice or registration, unless the work has been dedicated to the public domain.

      If you want to go beyond these rules of thumb to understand more of the specifics, Cornell Law School has an excellent chart that shows when different types of works (published, unpublished, published outside the US) will fall into the public domain based on an analysis of pre- and post-1978 copyright law. Additionally, the Creative Commons' Podcasting Legal Guide has a terrific discussion on how to determine whether a work is in the public domain.

      A word of caution about using public domain works. You should check whether a public domain work has already been incorporated into another work. Although the public domain portions of that new work are not protected, the author's new expressive content and selection and arrangement of the public domain work may be protected by copyright. Creative Commons' Podcasting Legal Guide gives two examples that illustrates this potential issue:

      • Photographs of the Mona Lisa that are designed to precisely replicate the original work will likely not enjoy copyright protection because they are intended to capture Leonardo Da Vinci's expression of the painting as closely as possible. However, a photograph of a sculpture that is in the public domain may be protected by copyright because of the skill and creativity involved in composing the photograph.
      • The text of a book in the public domain may be used freely, but a current publisher of the book may have copyright rights to the expressive elements of a recently published edition (e.g. the new layout, cover art, etc.).

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      Fair Use

      The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

      Section 107 of the Copyright Act defines fair use as follows:

      [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

      1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      2. the nature of the copyrighted work;
      3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
      4. and the effect of the use upon the potential market for or value of the copyrighted work.

      Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.

      The Four Fair Use Factors

      1. Purpose and Character of Your Use

      If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to "promote the progress of science and useful arts."

      In evaluating the purpose and character of your use, a court will look to whether the new work you've created is "transformative" and adds a new meaning or message. To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors.

      A common misconception is that any for-profit use of someone else's work is not fair use and that any not-for-profit use is fair. In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances. Courts originally presumed that if your use was commercial it was an unfair exploitation. They later abandoned that assumption because many of the possible fair uses of a work listed in section 107's preamble, such as uses for purposes of news reporting, are conducted for profit. Although courts still consider the commercial nature of the use as part of their analysis, they will not brand a transformative use unfair simply because it makes a profit. Accordingly, the presence of advertising on a website would not, in of itself, doom one’s claim to fair use.

      If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator.

      Moreover, if the original work or your use of it has news value, this can also increase the likelihood that your use is a fair use. Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use. See, e.g., Diebold, 337 F. Supp. at 1203 (concluding "[i]t is hard to imagine a subject the discussion of which could be more in the public’s interest”), Norse v. Henry Holt & Co., 847 F. Supp. 142, 147 (N.D. Cal. 1994) (noting "the public benefits from the additional knowledge that Morgan provides about William Burroughs and other writers of the same era").

      2. Nature of the Copyrighted Work

      In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. So, for example, taking newsworthy quotes from a research report is more likely to be protected by fair use than quoting from a novel. However, this question is not determinative, and courts have found fair use of fictional works in some of the pivotal cases on the subject. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).

      The published or unpublished nature of the original work is only a determining factor in a narrow class of cases. In 1992, Congress amended the Copyright Act to add that fair use may apply to unpublished works. See 17 U.S.C. § 107. This distinction remains mostly to protect the secrecy of works that are on their way to publication. Therefore, the nature of the copyrighted work is often a small part of the fair use analysis, which is more often determined by looking at the remaining three factors.

      3. Amount and Substantiality of the Portion Used

      Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

      If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

      Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Even substantial quotations may qualify as fair use in "a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections.

      4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

      In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work.

      Although the copyright holder need not have established a market for the work beforehand, he or she must demonstrate that the market is "traditional, reasonable, or likely to be developed." Ringgold v. Black Entm't TV, 126 F.3d 70, 81 (2d Cir. 1997). An actual effect on the number of licensing requests need not be shown. The fact that the original work was distributed for free, however, may weigh against a finding that the work had publication value. See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. 2000). Likewise, the fact that the source is out of print or no longer sold will also weigh in favor of fair use.

      The analysis under this factor will also depend on the nature of the original work; the author of a popular blog or website may argue that there was an established market since some such authors have been given contracts to turn their works into books. Therefore, a finding of fair use may hinge on the nature of the circulated work; simple e-mails such as those in the Diebold case (discussed in detail below) are unlikely to have a market, while blog posts and other creative content have potential to be turned into published books or otherwise sold. In addition, the author of a work not available online, or available only through a paid subscription, may argue that the use in question will hurt the potential market value of that work on the Internet.

      Assessing the impact on a copyrighted work’s market value often overlaps with the third factor because the amount and importance of the portion used will often determine how much value the original loses. For instance, the publication of five lines from a 100 page epic poem will not hurt the market for the original in the same way as the publication of the entirety of a five-line poem.

      This fourth factor is concerned only with economic harm caused by substitution for the original, not by criticism. That your use harms the copyright holder through negative publicity or by convincing people of your critical point of view is not part of the analysis. As the Supreme Court has stated:

      [W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because "parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically," the role of the courts is to distinguish between '[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.'"
      Campbell, 510 U.S. at 591-92 (citations omitted).

      The fact that your use creates or improves the market for the original work will favor a finding for fair use on this factor. See Nunez, 235 F.3d at 25 (finding fair use when the publication of nude photos actually stirred the controversy that created their market value and there was no evidence that the market existed beforehand).

      In summary, although courts will balance all four factors when assessing fair use, the fair use defense is most likely to apply when the infringing use involves criticism, comment, news reporting, teaching, scholarship, or research.  In addition, some general rules of thumb can be helpful in analyzing fair use:

      • A use that transforms the original work in some way is more likely to be a fair use;

      • A non-profit use is more likely to be considered a fair use than a for-profit use;

      • A shorter excerpt is more likely to be a fair use than a long one; and

      • A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.

      Some Special Considerations

      Publishing the Contents of Private Letters and E-Mail (including letters from lawyers threatening legal action): Fair use may protect the publication of the content of private letters and email, including communications from lawyers threatening legal action. As mentioned above, unpublished materials sometimes enjoy greater protection than published documents. Although an author may argue that the "unpublished" nature of his or her correspondence warrants a finding against fair use, such an argument carries weight only when the use involves a heretofore secret work “on its way” to publication, which is never the case for lawyers' cease-and-desist letters. Recently, two students at Swarthmore college posted an archive of internal emails among Diebold employees; an online newspaper linked to the archive in an article critical of Diebold’s voting machines. A court held that although the emails were not published, publishing them was nonetheless protected by fair use. Diebold, 337 F. Supp. 2d at 1203. The court found that the important fourth fair use factor weighed in favor of fair use because Diebold had no intention of selling the archive for profit and therefore it lost no value when the archive was published online. The court also noted the students and newspaper use was intended to support criticism of the company, which was a transformative use under the first factor.

      Copyright as a Tool to Silence Criticism: Sometimes, copyright owners try to use copyright law as a weapon to squelch speech that is critical of them or their works of authorship. For example, in Savage v. CAIR, a conservative radio host has filed a copyright infringement lawsuit against the Council on American-Islamic Relations for using excerpts of his radio show in order to criticize his rabidly anti-Muslim views and to call for sponsors to withdraw their support from his program. CAIR's use of these audio excerpts, and similar uses of copyrighted material in order to criticize a copyright owner, are almost certainly protected by fair use. As EFF argues in its brief asking the court to dismiss Savage's lawsuit:

      The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect.

      For another case involving an attempted use of copyright to silence criticism, see our database entry, ABC v. Spocko.

      Practical Tips for Avoiding Copyright Liability

      While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

      • Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
      • Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
      • Add something new or beneficial (don't just copy it -- improve it!);
      • If your source is nonfiction, limit your copying to the facts and data; and
      • Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

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      Linking to Copyrighted Materials

      If you publish your work online, you are already in the practice of using links to enhance your content. The Web's basic architecture relies heavily on the ability of webpages to link to other pages to allow natural navigation between related content. It is hard to imagine the smooth functioning (or even continued existence) of the Web without hypertext links that act as a reference system identifying and enabling quick access to other material. Fortunately, courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim. However, different kinds of linking raise different legal issues, and the law is not entirely settled in all of these areas. Moreover, some linking activities may expose you to liability for contributory copyright infringement or trafficking in circumvention technology in violation of the Digital Millennium Copyright Act (DMCA).

      Types of Links

      Deep Linking: The most straightforward case is so-called "deep linking," which refers to placing a link on your site that leads to a particular page within another site (i.e., other than its homepage). No court has ever found that deep linking to another website constitutes copyright or trademark infringement. Therefore, you can link to other websites without serious concerns about legal liability for the link itself, with the exception of activities that might be contributory copyright infringement or trafficking in circumvention technology (discussed below).

      Inline linking: Inline linking involves placing a line of HTML on your site that so that your webpage displays content directly from another site. We now commonly refer to this practice as embedding. For example, many bloggers embed videos from YouTube on their blogs to illustrate a point or initiate discussion. While there is some uncertainty on this point, a recent case from the Ninth Circuit Court of Appeals concluded that inline linking does not directly infringe copyright because no copy is made on the site providing the link; the link is just HTML code pointing to the image or other material. See Perfect 10, Inc. v. Google, Inc., 508 F.3d 1146 (2007). Other courts may or may not follow this reasoning. However, the Ninth Circuit's decision is consistent with the majority of copyright linking cases which have found that linking, whether simple, deep, or inline, does not give rise to liability for copyright infringement. For discussion of these cases, see The Internet Law Treatise. In addition, merely using an inline link should not create trademark liability, unless you do something affirmative to create the impression that you are somehow affiliated with or endorsed by the site to which you are linking. Thus, embedding media in your online work should not expose you to legal liability, with the possible exceptions discussed below.

      Framing: Framing refers to the practice of dividing a web page into multiple sections that use HTML code to pull content from different sources. The law should treat framing much like inline linking for purposes of copyright infringement (see discussion immediately above), but no case has considered the issue of framing in the context of copyright law. Framing potentially raises trademark problems. Depending on how you design your page, a user might be confused into believing that all of the source material is yours. Some plaintiffs have sued websites for framing under trademark and related areas of law, but most cases have settled and the law remains unclear.

      Linking to Infringing Works

      The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos. In this situation, you might be liable for what is known as "contributory copyright infringement." Contributory copyright infringement occurs by "intentionally inducing or encouraging direct infringement" of a copyrighted work. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd, 545 U.S. 913, (2005). As long as you do not know that a work infringes someone's copyright, then you cannot be held liable for contributory infringement for directing users to that work. On the other hand, it is not necessarily safe to simply claim that you "didn't know" when the circumstances make it clear the material you link to is infringing. Use your common sense. Fred vonLohman gives the following rules of thumb to help avoid contributory copyright infringement (specifically with reference to embedding videos):"(1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing." Relatedly, you may be able to protect yourself against claims of contributory copyright infringement by complying with the notice-and-takedown procedures of the DMCA. For details, see Notice-and-Takedown.

      Linking to Circumvention Technology Proscribed by the DMCA

      Linking also raises legal issues in connection with the anti-circumvention provisions of the DMCA. Section 1201 of the DMCA makes it illegal to traffic in technology that enables others to circumvent technological measures put in place by copyright holders to control access to or uses of their copyright work. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. You can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. For example, one court has held that linking itself is not enough, and liability requires some more direct tie between the offending websites, such as receiving compensation in exchange for linking. See Comcast v. Hightech Elecs., Inc., 2004 WL 1718522 (N.D.Ill. July 29, 2004).

      Given the uncertain state of the law, it is best not to knowingly link to sites hosting circumvention software. To be on the safe side, you should also remove user-generated content that links to such postings. This cautious approach may put websites that depend upon high levels of user interactivity in an uncomfortable position, as illustrated by the Digg.com user "revolt" in May 2007.

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      Getting Permission to Use the Work of Others

      At some point you may want to use someone else's work. You should first determine whether the work is protected by copyright. Is the work copyrightable? Is it in the public domain? Is your use of the work barred by another area of the law such as trademark law? Keep in mind that a work doesn't have to have a copyright notice affixed to it to be covered by copyright.

      Once you've gone through the above analysis and determined that the material you wish to use is protected by copyright, you should seek the copyright owner's permission to use the work. You will first need to identify the copyright owner, and then request permission for your specific use. If you are told that you cannot use the copyrighted work, this doesn't necessarily preclude you from using the work. You will not lose the ability to assert that your use is a "fair use" even if the copyright owner refuses to give you permission to use his work. For more on fair use, see the section on Fair Use in this guide.

      1. Identifying the Copyright Owner

      In many cases you will be able to quickly identify the copyright owner of the work. For some works, however, locating the copyright owner becomes an involved process. As you research, keep in mind that you may need to contact more than one person to get the necessary permission. For example, if the work you wish to use is the photograph of a person, you should seek permission from the copyright owner of the photograph as well as the person in the photograph if you will use the image of the person for commercial purposes, such as advertising. See the section on Rights of Publicity for more information on this issue.

      You will likely find information about the copyright owner by searching several places:

      Copyright Notice
      First, examine whether the work contains a copyright notice. A copyright notice will have the copyright owner's name, which you can use to search for contact information. Note that if the work was first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. See the section on Works Not Covered By Copyright to learn more about this issue.
      Author's Name
      Check to see whether the work is attributed to an author. In some cases the author is also the copyright owner, but you should make sure that the author has the authority to exercise the exclusive right you wish to use--i.e. she has not licensed or transferred the exclusive rights, or that the author's creation is not a work-for-hire. If the author is not the copyright owner, she can tell you who commissioned the work or to whom she transferred ownership.
      U.S. Copyright Office
      Use the Copyright Office's catalog to search copyright records online for information about the copyright owner, or any change in ownership that has been recorded with the Office. The online catalog allows you to search through records dated after January 1, 1978. In order to search for older records, you will need to either visit the Copyright Office and search the Copyright Card Catalog yourself, or pay a fee for a Copyright Office employee to conduct a search for you. See Circular #23 for more details.
      Search Engines
      If the work is online and you are unable to find an author or contact information for the website owner, use Whois to search domain registrars for the website's registrant name and contact information.
      Copyright Collectives
      A copyright collective refers to an organization that licenses works on behalf of copyright holders. The most well-known copyright collectives license musical works and distribute the licensing fees to the copyright holders of the musical work. The three copyright collectives are ASCAP, BMI and SESAC. Similarly, you can turn to the Copyright Clearance Center or iCopyright to get licenses for published documents, such as articles from newspapers, magazines, books, journals, etc.
      Although these collectives can streamline the request process for you, they often charge fees more suited to a large commercial operation. Consider visiting sites like CC Mixter for its musical works instead. See the discussion below on works covered by open content licenses.

      As you conduct your research, refer to the Copyright Office's excellent resource on How to Investigate the Copyright Status of a Work.

      2. Requesting Permission

      Once you've identified the copyright owner, it is time to actually make your request. Often, an informal approach (by emailing or phoning the copyright owner) will work. If you opt for the informal route, be sure to follow up in writing. In many cases, misunderstandings arise over the scope of permission, and you can avoid such controversies by being explicit about how you wish to use the work.

      Alternatively, you can go the formal route and send a letter to the copyright holder. In addition, if you need to contact a copyright collective to request a license, you should follow the procedures specific to their organization.

      Your request should include:

      • Your name and contact information
      • Details identifying the work you wish to use (title, URL, etc.)
      • The reason that you wish to use the work - for personal, research, commercial, commentary, criticism, review, or educational purposes
      • How you intend to use the work - length of time, number of places (e.g. on your website, and your newsletter), etc.

      For example, Jennifer Kyrnin at About.com, Indiana University-Purdue University's Copyright Management Center, and the University of Texas' Office of the General Counsel have sample letters that you can use to create your request.

      3. Responses from Copyright Owners

      If the copyright owner gives you permission to use her work, you are nearly done. Your last step should be to keep a record of how you found the owner, and a record of the permission that she gave you. As the Copyright Management Center at Indiana University notes: contact information will help you if you ever wish to get permission from the same owner in the future, and a record of the permission will assist you in the event that any future disagreements arise over the scope of the permission.

      You should record:

      • The name of work and any additional information (e.g., url, etc.)
      • Copyright owner and contact information
      • Author of work (if different from owner)
      • Date you requested permission and a copy of your request
      • Date the owner granted you permission, the conditions contained in the permission, and the expiration of permission
      • How you actually used the work
      • Any fees you paid to the copyright owner

      If you cannot locate the copyright owner, or the copyright owner's response includes a large fee or a flat out denial, then your remaining options are:

      Fair Use
      Regardless of the copyright owner's response, you can still use the work if your use comports with the fair use doctrine. The doctrine of fair use makes it legally permissible for you to use a copyrighted work without permission for purposes such as commentary, criticism, parody, news reporting, and scholarly works. Whether or not your use is lawful usually depends upon how different or "transformative" your use is from the original. Unfortunately, there is no clear formula to determine the boundaries of fair use. Refer to the section on fair use for a general discussion of the doctrine.
      Link to the work
      If the work is online, perhaps you can simply link to the work and still get your point across. If this is a viable option, refer to the section on Linking to Copyrighted Materials for the legal issues that may arise from linking to other online works.
      Use Alternative Works
      Another option is to find another work altogether. If you choose this route, you may wish to consider using works not covered by copyright or works that are covered by open content licenses, such as a Creative Commons license, so that you do not need to get explicit permission to use them. The following sites contain works covered by open content licenses:
      • CC Mixter hosts a collection of music covered by the Creative Commons license. You can download and sample, remix and then share the results with "anyone, anywhere, anytime".
      • Flickr allows its users to offer their work under a Creative Commons license. You can browse or search through the Flickr photographs under each type of license.
      • Open Photo has a variety of stock photos that are licensed for free commercial and non-commercial use.

      Jurisdiction: 

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      Circumventing Copyright Controls

      You may come across digital works that contain copyright controls, such as digital rights management (DRM) technology or a software copy protection system. As a general matter, you should not circumvent these copyright controls, or you may face civil and criminal penalties under the Digital Millennium Copyright Act (DMCA).

      Some copyright owners embed a form of DRM into their digital work in order to control its use and distribution. Typically, copyright controls come in two flavors:

      1. access-control measures designed to keep you from accessing the work; and
      2. copy-control measures that limit what you can do with the work after you have access (e.g., whether you can copy the work, how many copies can be made, how long you can have possesion of the work, and the like).

      The DMCA prohibits circumventing access-control measures. 17 U.S.C. § 1201(a)(1). For example, if you cannot watch a particular copyrighted DVD on your laptop because of an encryption system, the DMCA makes it unlawful for you to bypass this access-control measure. Access-control measures may also be found on eBooks, Internet streaming platforms, and password-protected sections of websites, among other things. Note that there is no ban on the act of circumventing copy-control measures, but it is illegal for anyone to provide you with the technological tools to do so. In any event, some copyright holders merge access-control and copy-control measures in the same DRM system, making it impossible to circumvent copy-controls (which is not prohibited) without circumventing access-controls (which is prohibited).

      The DMCA also prohibits trafficking in devices or tools that help other people circumvent access-control and copy-control measures. 17 U.S.C. § 1201(a)(2), (b). "Trafficking" means making, selling, giving away, or otherwise offering these devices or tools to the public. Beware: you can "traffic" in circumvention tools simply by posting them on your website or linking to other websites that host them. For example, in 1999 a Norwegian teenager created a software program called "DeCSS" that allowed users to circumvent CSS, the encryption technology used by movie studios to stop unlicensed playing and copying of commercially distributed DVDs. A number of websites posted the source and object code for DeCSS on the Internet, and other websites linked to them. The Second Circuit held that hosting and linking to the DeCSS code violated the DMCA's anti-trafficking provisions, and that this application of the DMCA did not violate the First Amendment. See Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). This decision is controversial, and it is not clear that other courts would necessarily follow its reasoning. Nevertheless, it illustrates how risky it is to host or even link to devices or tools that enable others to break access- and copy-controls.

      Fair use is not a defense to a prohibited act of circumvention or trafficking. It does not matter that you or someone else has to circumvent DRM in order to make fair use of a copyrighted work. This is one of the reasons that the DMCA is so controversial.

      There are, however, several exemptions built into the DMCA that permit the circumvention of access- and copy-control measures for limited purposes or the limited distribution of circumvention tools in particular circumstances. In addition, the DMCA directs the Librarian of Congress, upon the recommendation of the Register of Copyrights, to publish a list of classes of works to be exempted from the anti-circumvention provisions of the DMCA. The Librarian makes the determination of which classes of works to exempt based on a determination, made pursuant to a complex rule-making process, that fair use of a particular class of works is likely to be adversely affected by the anti-circumvention provisions of the law. The best known current exemption is for "computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network." Memorandum of Librarian of Congress on 1201 Recommendations. This exemption apparently allows cell phone users to "unlock" their phones for use with other carriers, so long as this is the only motivation. The impact of the cell phone companies' user agreements on this exemption is still uncertain. For more on the story, see Wired's Legal or Not, IPhone Hacks Might Spur a Revolution.

      The DMCA is complicated, and this page gives just a brief summary of the anti-circumvention and anti-trafficking provisions. For more detailed analysis, see the Chilling Effects FAQ about Anticircumvention and The Internet Law Treatise.

      Jurisdiction: 

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      Copyright Infringement

      It is a widely held misconception that works on the Internet are not covered by copyright and thus can be used freely. This is not true. Copyright law applies to online material just as it does to offline material, assuming the prerequisites for copyright protection are met. Thus, if you use someone else's work, you could be liable for what is called "copyright infringement." Basically, copyright infringement exists if you exercise one or more of the exclusive rights held by a copyright owner. A copyright owner enjoys the following exclusive rights:

      • to reproduce the work in copies
      • to prepare derivative works based upon the work
      • to distribute copies of the work to the public
      • to perform the work
      • to display the copyrighted work
      • and, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission

      See Rights Granted Under Copyright for more discussion.

      In order to bring a successful claim of copyright infringement in the context of copying on a blog or website, the plaintiff must generally prove:

      1. That she is the owner of a valid copyright in the work or has the legal authority to bring a lawsuit;
      2. That the defendant actually copied the copyrighted work, either by direct evidence of the copying or evidence that shows: (a) the defendant had access to the original work and the defendant's work is substantially similar to the copyrighted work, or (b) the defendant's work has a striking similarity to the copyrighted work; and
      3. The copied sections of the work are protected by copyright (i.e. not merely copying facts from the copyrighted work)

      If the defendant is found liable for copyright infringement, the copyright holder will be entitled to recover his or her actual damages (e.g., lost profits) or, if certain conditions are met, statutory damages between $750 to $30,000 per infringement.  If the plaintiff can prove the infringement was willful, the statutory damages may be as high as $150,000 per infringement. 

      Defenses

      There are three common defenses available to defendants who are faced with a copyright infringement claim:

      • The work used is not covered by copyright (i.e. characterize the work as being factual only, without any expressive element).

      • The defendant independently created the work herself. As discussed above, any claim of infringement must involve the defendant's use of an unauthorized copy of the plaintiff's work. Thus, infringement cannot occur in the absence of the defendant's copying the plaintiff's work. Additionally, no provision of copyright law bars another author from independently creating a work that is remarkably similar to another.

      • The use is a fair use. The doctrine of fair use is the third, and most oft-cited, defense. The courts and Congress adopted the fair use doctrine to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you. Refer to our section on fair use for a more in-depth discussion on the doctrine.

      Note that the infringing use of a copyrighted work cannot be cured by attribution (i.e. citing the copyrighted work). While citing to the original source is always a good idea, attribution will not protect you from a claim of copyright infringement.

      Copyright v. Plagiarism

      Plagiarism is the act of using another's work and passing it off as your own. While such a use could open you up to a copyright infringement claim, there is no legal liability associated with the act of plagiarism.

      Nevertheless, it is a good idea to avoid plagiarism. The best way to avoid plagiarism is to adequately cite your work. Depending on the nature of your online work, your citations can be informal in style, or adhere to the more formal citation conventions. See the University of Iowa's Guide to Citation Style Guides, and Yale College's guide to citing blogs for more information.

      Since plagiarism and copyright infringement are similar concepts, a few examples may be helpful:

      • If an author publishes a poem on his blog in which he substantially copies from Dante's Inferno but passes off the words as his own, he has committed plagiarism. However, the author has not committed copyright infringement because Dante's work is in the public domain.
      • In contrast, if a website owner publishes a compilation of contemporary short stories on her website without the permission of the original authors, she would be liable for copyright infringement, even if the compilation properly notes the original authors and thus avoids plagiarism.
      • Finally, if a journalist uses content from yesterday's daily newspaper as his own original article in a weekly online magazine, the journalist has committed both plagiarism and copyright infringement.

      Jurisdiction: 

      Subject Area: 

      Copyright Claims Based on User Content

      In 1998, Congress passed a controversial law known as the Digital Millennium Copyright Act (DMCA). Through the DMCA, Congress attempted to adapt U.S. copyright law to the challenges posed by digital technologies and the online environment. Although the DMCA as a whole extended the reach of copyright law and is generally regarded as favoring the interests of copyright owners, it also created provisions limiting the liability of certain online actors. Section 512 of the DMCA, 17 U.S.C. § 512, contains the DMCA's "safe-harbor" provisions for online service providers. These safe harbor provisions shield online service providers, like ISPs, hosting providers, search engines, and website operators, from copyright infringement claims made against them based on the conduct of their customers or users. To take advantage of the safe-harbor provisions, online service providers need to implement "notice-and-takedown" procedures that call for expeditious removal of content upon receipt of a formally valid takedown notice from a copyright owner. The DMCA's notice-and-takedown procedures could impact your online publishing work in a variety of ways:

      If you operate a website that hosts user content, you should consider implementing these procedures and taking the administrative steps required to enjoy safe-harbor protection. You are not legally required to do so, but it may help you avoid copyright infringement liability. The three main things you need to do to take advantage of the safe-harbor provisions are (1) designate a copyright agent to receive takedown notices; (2) adopt and communicate to users an effective "copyright infringement policy"; and (3) properly comply with takedown notices when received. For details, on please see Protecting Yourself Against Copyright Claims Based on User Content.

      Alternatively, your content may be the target of a DMCA takedown notice sent to someone else. For example, a copyright owner might send a takedown notice to your hosting provider complaining that you are posting copyright infringing material and asking the hosting provider to remove or disable access to it. Or, a copyright owner might send a takedown notice to YouTube or another video-hosting service demanding that a video you uploaded be taken down. (Our database is filled with examples of this -- Universal Music Group v. Malkin, Creation Science Evangelism v. Rational Response Squad, U.S. Air Force v. Wired/Threat Level, to name but a few). Less commonly, you might even post something in user comments on another blog or website that elicits a takedown notice. The DMCA gives online service providers, like your hosting service, YouTube, and other website operators, an incentive to take down your material when someone sends a notice complaining about it, but it also enables you to send a "counter-notifice" to get your material put back up. Sending a counter-notice may result in the copyright owner suing you, so you will want to be sure that you are not infringing the complaining party's copyright before sending a counter-notice. For details on what to do if your content is the target of a takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content.

      Finally, if you discover that someone else is copying or using your work in a way that doesn't look like fair use, such as by reprinting entire articles or posts without your permission, then you may want to consider sending a takedown notice of your own. For details on this and other strategies for protecting your work online, see Protecting Your Copyrighted Work Online.

      Jurisdiction: 

      Subject Area: 

      Protecting Yourself Against Copyright Claims Based on User Content

      If you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law. Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  This page explains how this important law works.

      Section 512 of the DMCA contains what are called the "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright-infringing material from other online sources, as long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing. Section 512 has a somewhat confusing structure; if you are interested in navigating the language of the statute, this paper from Fenwick & West LLP attempts to lay out the terms of section 512 in a more logical fashion.

      You are not legally required to comply with the safe harbor provisions of section 512, but doing so may help you avoid copyright infringement liability. The sections below address those provisions of section 512 that may apply to you and discuss what you need to do in order to take advantage of the safe harbor provisions.

      Storing and Linking to Copyrighted Content: Sections 512(c) and (d)

      There are two safe-harbor provisions that potentially apply to your online publishing activities.

      The first safe-harbor provision relates to materials posted to your blog or website at the direction of a user. This could include a file (e.g., a photograph, a film clip, an audio file) that a user posts to a comment section on your site or to a forum thread. (There are many other potential examples, the important thing is that the material is posted by another person, not you). This safe-harbor provision is found in section 512(c), and it states that, as the administrator of a website or other service, you will not be held liable for money damages for infringing content posted "at the direction of a user," as long as you

      • do not have actual knowledge that there is infringing content on your servers, or know any surrounding facts that would make the infringing use apparent;
      • do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
      • act expeditiously to remove or disable access to the infringing material upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

      The second safe-harbor provision relates to links you post to other online material located elsewhere. This safe-harbor provision is found in section 512(d), and it states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." (emphasis added). If you linked to material without knowing that it infringed copyright, the language of this section appears to relieve you of liability, as long as you

      • do not have actual knowledge that the material you linked to is infringing, or know any surrounding facts that would make the infringement apparent;
      • do not receive any financial benefit directly attributable to the infringing activity if you have the ability to control such activity; and
      • act expeditiously to remove or disable access to the infringing material (such as by taking away the link) upon obtaining knowledge or awareness that the material is infringing or upon receiving a properly drafted notice of infringement (more below).

      These safe harbor provisions could be valuable protections for you as a website operator, but in order to take advantage of them, you have to meet a few further administrative requirements.

      Note: the existence of the safe-harbor provisions does not imply that you will be held liable for copyright infringement if you opt not to use the safe harbors. Rather, your liability will depend on the independent principles of direct and secondary infringement. For details, see the Chilling Effects FAQ about Copyright - What constitutes copyright infringement? and its FAQ about DMCA Safe Harbor Provisions - What is third-party liability, also known as secondary liability?

      Administrative Requirements for Safe Harbor Protection

      There are a few additional administrative steps that you need to take before you can enjoy the benefits of the safe-harbor provisions. These steps seem complicated at first, but in fact do not require a significant amount of effort or cost in order to comply with them. The steps are as follows.

      1. Designate a Copyright Agent to Receive DMCA Takedown Notices

      The U.S. Copyright Office maintains a list of designated agents to receive notices of claimed copyright infringement. This list enables copyright owners who believe that their work is being infringed to send complaints or "takedown notices" to internet service providers hosting or linking to the disputed material. You need to designate an agent, which can be you or someone else who agrees to do it, in order to take advantage of the DMCA safe-harbor provisions. To do this, you file an Interim Designation with the United States Copyright Office, along with an $105 filing fee.

      2. Adopt and Communicate to Users a Copyright Infringement Policy

      In order to qualify for the safe harbor protections, you must also publish a statement on your site giving notice to your users of your DMCA agent's contact information and your policies regarding copyright infringement and the consequences of repeated infringing activity. The notice can be a part of the website's terms of use or some other notice displayed prominently on the site. For more on terms of use, see the Terms of Use and Website Privacy section for details. The statement should explain that you respond expeditiously to notices of claimed copyright infringement andterminate users or account holders who are "repeat infringers." If you have no subscribers or account holders, your policy may state "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate that user."

      You may want to include a statement detailing the proper form for a notice of claimed infringement, which must include:

      • a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
      • identification of the copyrighted work or works claimed to have been infringed;
      • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
      • information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
      • a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
      • a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner.

      17 U.S.C. § 512(c)(3)(B) states that if a complaining party does not substantially comply with these requirements, its notice will not serve as "actual notice" for the purpose of Section 512. Your policy statement should also include a statement explaining the procedure for users of your site to make a counter-notification (discussed below).

      3. Properly Comply with a Notice of Claimed Infringement When Received

      You may from time to time receive a notice of claimed infringement from a copyright owner, alleging that content on your site infringes the holder's copyright. Such a notice must comply with the form outlined above. Once you verify that a copyright notification substantially meets these formal requirements, in order to qualify for the safe harbor, you are required to:

      • expeditiously remove or disable access to the material that is claimed to be infringing (there is little guidance on what counts as "expeditious");
      • notify your user or subscriber that the material has been removed so that they may file a counter-notice should they wish (you are not required to notify the user before removing the material);
      • if proper counter-notice is provided, notify the copyright holder and provide a copy of that counter-notice; and
      • if proper counter-notice is provided and if the copyright holder does not file suit within 10 business days, restore the removed material.

      For information on the content of a proper counter-notice or if your content has been removed by your service provider as a result of a DMCA takedown notice, see Responding to a DMCA Takedown Notice Targeting Your Content. 

      A Warning: Not Every Cease-and-Desist Letter is a DMCA Takedown Notice

      The DMCA gets a great deal of attention in discussions of online speech, especially in technical circles. This attention is warranted, and vigorous debate about this controversial provision of the Copyright Act is necessary. But it is important to remember that other legal issues may also affect your online activities. The DMCA safe-harbor provisions apply only to claims of copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims alleging misappropriation of trade secrets, to name just a few of the possibilities. This means that you cannot insulate yourself from liability on one of these other claims simply by "expeditiously removing" the disputed content. In many situations, you may be protected by section 230 of the Communications Decency Act for publishing the statements of your users. See the Primer on Immunity -- and Liability -- For Third-Party Content under Section 230 of the Communications Decency Act for details on this provision.

      Website and blog operators get cease-and-desist letters based on non-copyright claims with some frequency. You should not assume that every threatening letter you receive is a DMCA takedown notice -- you need to look at the precise allegations and legal claims made in the letter and evaluate your next steps from there. It is not sufficient, for example, to conclude that a cease-and-desist letter relating to defamation or trade secrets law is somehow "defective" because it has not met the formal requirements for a notice of claimed copyright infringement under section 512. This will only muddle your thinking and could potentially exacerbate a delicate situation. For more on what to do if you receive a cease-and-desist letter, consult the Responding to Correspondence Threatening Legal Action section. For more on the confusion between other kinds of cease-and-desist letters and notices of claimed infringement, see our blog post, Not Every Cease-and-Desist Letter is a DMCA Takedown Notice.

      This confusion may also work in reverse. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, such as material you posted yourself. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so.

      A Specialized Question: What About Embedded Video?

      It is becoming more and more common to embed videos from other online sources into an article or post in order to illustrate a point or get a laugh. This raises the question of whether you could be held liable for embedding an infringing video on your website or blog. The technical point to keep in mind is that an embedded video is just a link. So, there is no copy of the video being stored on your server, just the HTML code for the embed. Therefore, you may be able to claim the protection of the safe harbor found in 17 U.S.C. § 512(d), discussed above. For details see our blog post, Embedded Video and Copyright Infringement.

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      Responding to a DMCA Takedown Notice Targeting Your Content

      If your hosting service or other online service provider receives a DMCA takedown notice regarding your content, it ordinarily will respond by removing the complained-of material, and it will do this automatically without making any judgment about whether your content actually is infringing. However, the DMCA notice-and-takedown procedures provide you with protection from a wrongful claim of copyright infringement. The DMCA requires your service provider to notify you promptly when it removes any of your content because of a takedown notice, and you have the right to submit a counter-notice asking that the material be put back up. There is no specific time limit for submitting a counter-notice, but you should not delay unreasonably in doing so. If you send a counter-notice, your online service provider is required to replace the disputed content unless the complaining party sues you within fourteen business days of your sending the counter-notice. (Your service provider may replace the disputed material after ten business days if the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.)

      Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party's copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner's work in a lawsuit, you should think twice about firing back a counter-notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.

      Some common bases for sending a counter-notice are that the complaining party does not own copyright in the work in question -- either because it is not covered by copyright or because someone else owns the copyright to it -- and that your use of the copyrighted work is a fair use. You should be extra careful when relying on a claim of fair use to justify sending a counter-notice. Determining whether something is a fair use often requires a complex, fact-specific analysis, and even lawyers have difficulty predicting what a court will say about fair use ahead of time. If you believe fair use might protect you, you should examine the four fair use factors carefully and consider contacting an intellectual property attorney.

      To work effectively, your counter-notice must contain the following items:

      • your physical or electronic signature;
      • your name, address, and phone number;
      • identification of the material and its location before it was removed;
      • a statement under penalty of perjury that the material was removed by mistake or misidentification;
      • your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the U.S.); and
      • your consent to accept service of process from the party who submitted the takedown notice.

      17 U.S.C. § 512(g)(3). Chilling Effects has a great counter-notification generator to help you draft a valid counter-notice.

      If you are not a U.S. resident, you must consent to the jurisdiction of a U.S. court in your counter-notice. If you never come to the United States and have no assets there, then this may not be a significant concession because a plaintiff would not be able to enforce a judgment against you in the U.S. Nevertheless, a plaintiff might be able to convince a court in your country to enforce a foreign (U.S.) judgment, and this proceeding might not give you the opportunity to make out your case. In any event, sending a counter-notice makes non-U.S. residents give up a powerful argument they would otherwise have -- namely, that a U.S. court does not have the authority to render a judgment against them. For these reasons, non-U.S. residents may not want to send a counter-notice unless they are willing to fight a copyright infringement claim in the U.S.

      Section 512(f) of the DMCA creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. See 17 U.S.C. § 512(f). So, if you claim in a counter-notice that your content does not infringe the complaining party's copyrighted work while knowing this to be false, then the copyright owner can win damages from you, including court costs and attorneys' fees stemming from your wrongful counter-notice. Note, however, that this provision also works against a person or company sending a wrongful takedown notice. If someone claims in a takedown notice that you are infringing their copyrighted material while knowing this to be false, then you can win damages from them in a lawsuit. In recent years, the targets of wrongful takedowns have fought back and won damages and favorable settlements from individuals and companies sending bogus takedown notices. For instance, in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004), two students and their ISP sued voting machine manufacturer Diebold after it tried to use DMCA takedown notices to disable access to Internet postings of the company's leaked internal email archive. The court granted summary judgment to the students and ISP on their claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit. For another example, see Crook v. 10 Zen Monkeys in our legal threats database. Someone who has sent a baseless takedown notice about your content may be more inclined to back off if you remind him or her about section 512(f) of the DMCA, in addition to sending a counter-notice.

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      Protecting Your Copyrighted Work Online

      Often, the best strategy for dealing with speech you do not like is through more speech, rather than resorting to threats of legal action. In some situations, however, more speech may do little good, such as when someone copies your work and publishes it on another website without permission. For instance, a recent post on MediaShift's Idea Lab blog asks "How Do We Deal With Stolen Content?". In that post, Gail Robinson, the editor-in-chief of Gotham Gazette, relates how the Gazette's technical director has found many sites reprinting the full text of Gazette articles without permission, often using them with little or no attribution and sometimes even making the articles look like original material. This post prompted us to think about strategies for citizen media creators to protect their online work from copyright infringement. The law provides you with several tools for protecting your work, including sending DMCA takedown notices to online service providers that host websites or blogs that copy your work. Despite the potential usefulness of these tools, it is important to use them judiciously to protect your rights without unduly chilling the speech of others.

      We cover the basics of copyright law elsewhere in this guide -- see especially What Copyright Covers and Using the Works of Others -- but suffice it to say that copyright protects your articles, posts, photographs, videos, and other works of creative expression from the time that they are fixed in a tangible medium of expression (e.g., from the time you first type your words into your computer or save a photograph or video as a digital file). At the very least, other websites that post your articles or other work without permission are infringing your rights to reproduce (i.e., the right to make a copy) and distribute them. Before taking any action, however, you should consider carefully whether the other site's use of your work could be a fair use. Wholesale copying of your work will usually not be fair use, but selective quoting and paraphrasing may be permissible, especially if it is for purposes of commenting on or criticizing your work. For details, see the Fair Use section in this guide. You should also consider whether you have granted a license to the public to reproduce and distribute the work, such as through a Creative Commons license posted on your site. For details on licensing, see the Copyright Licenses and Transfers section and its subsections.

      If you determine that someone is infringing your copyrighted work and that it likely is not a fair use, the most straightforward route is to look for contact information on the offending site or blog and write the person an email stating that the site or blog is infringing your work and asking for it to be taken down. Your email need not be long and complicated; you just need to state the basics facts (i.e., the website is using your copyrighted work without permission) and what you want done about it (i.e., take it down). The Chilling Effects Clearinghouse has thousands of copyright cease-and-desist letters in its database that you can use as models.

      If contacting the infringing website operator does not work, you might have better luck with the company that hosts the website or blog. You can use a tool like Who is Hosting This? to help determine the identity of the host. A hosting service or other online service provider has an incentive to comply with a takedown notice because the DMCA safe-harbor provisions give it a defense to copyright liability if, upon receiving such a notice, it expeditiously removes infringing material posted at the direction of its clients. For details, see Protecting Yourself Against Copyright Claims Based on User Content. In order for a takedown notice to be effective, you must send it to the registered copyright agent of the host or other online service provider you want to contact. The U.S. Copyright Office maintains a directory of designated agents, and the provider's website will often list the designated agent in its "Copyright Infringement Policy," "DMCA Policy," or a like posting. In addition, a takedown notice must contain the following items in order to be valid:

      • a physical or electronic signature of a person authorized to act on behalf of the owner of the infringed copyright;
      • identification of the copyrighted work or works claimed to have been infringed;
      • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed;
      • information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address);
      • a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and
      • a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner

      17 U.S.C. § 512(c)(3)(B). If your takedown notice meets these formal requirements, then the host or other online service provider has to expeditiously remove the complained-of material if it wants to maintain its immunity from copyright liability. After it does so, however, the person whose work has been taken down may send a counter-notice to the service provider. If this happens, the service provider will notify you about the counter-notice. From this point, you have fourteen business days to file a lawsuit and notify the service provider that you have done so, or else the service provider is obligated to put the disputed material back up. See 17 U.S.C. § 512(g)(2).

      Note: If both the website operator and the hosting service are outside the United States, then you may not have luck via these routes.

      Another strategy you can adopt to help protect your work online is to register your website content with the U.S. Copyright Office. Registration is most valuable, however, only if you would be willing to go through with filing a lawsuit. The good thing about registration is that, if you sue someone for infringement and win, then the court can award you statutory damages (damages that are set by statute, so you don't have to prove how you were actually injured, which can be hard) and attorneys' fees. In a sense, registering your work puts some teeth behind the letter-writing strategies discussed above. If you are interested in this route, please consult the Copyright Registration and Notice section of this guide and Sarah Bird's excellent posts about registering website content, Sample Forms and Strategies for Registering Your Online Content and Why You Should Go to the Trouble to Register Your Copyright When Everyone Tells You That Your Work Is Protected Automatically. Again, let me emphasize that registration really only helps if you are willing to sue, which many are not willing to do.

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      Trademark

      A trademark is a word, phrase, symbol or other indicator that identifies the source or sponsorship of goods or services. If an individual, business, or other organization uses a trademark to sell or promote its goods or services, then it can gain the right to exclude others from using the trademark in connection with similar goods or services. Owners of famous trademarks, like "Windows," "McDonald's," or "Google," may also stop others from using them in connection with even dissimilar goods or services. Trademark law is a branch of intellectual property law that is governed by both federal and state laws. By far the most important trademark law is the federal Lanham Act; because state laws generally follow the Lanham Act, this guide focuses on it exclusively.

      A basic understanding of trademark law is important to your online activities for two reasons. First, as a provider of goods or services (e.g., online publishing, educating the public, newsreporting), you may want to use trademarks to identify your work to the consuming public. In that case, you'll want to understand how to protect your legal rights, so that others do not unfairly take advantage of your reputation and the positive association you've built up between your trademark(s) and your work. Second, you should understand how you can properly make use of someone else’s trademark for purposes of news reporting, commentary, and criticism. This overview page and the more detailed sections that follow will help you to understand both of these important aspects of trademark law.

      Common examples of trademarks include "Yahoo!" in its characteristic red font, YouTube's slogan "Broadcast Yourself," and the venerable "New York Times."

      Yahoo Logo YouTube Logo New York Times Logo

      Many trademarks use a stylized font or logo, but a trademark can be as simple as plain text, such as "iPod," or a domain name, such as "hotels.com," so long as the trademark owner uses it to identify its products or services. Trademarks are not limited to traditional marks like text, images, or symbols, but can be anything that acts as a source-identifier for goods or services. Examples of such non-traditional trademarks are the color brown for a shipping company (a trademark of UPS), the sound of chimes for a television channel (a trademark of NBC), and the scent of plumeria for yarn. For more information about what can constitute a trademark, see the section on What Trademark Covers.

      Not all trademarks receive the same degree of protection. They differ in strength according to their distinctiveness. Generally, the more unique or distinctive the mark is, the greater protection it receives. On a spectrum of decreasing distinctiveness, marks are classified as: (1) fanciful, (2) arbitrary, (3) suggestive, or (4) descriptive. 

      Fanciful marks (made-up words like "Kodak"), arbitrary marks (existing words used in a way unrelated to their common meaning, like "Apple" for computers), and suggestive marks (those that hint at a quality or aspect of the product or service, like "Coppertone") are considered inherently distinctive. 

      Descriptive marks, or marks that describe the product or service directly such as "The Container Store," are not inherently distinctive and require the showing of "secondary meaning" in order to be entitled to trademark protection. Secondary meaning is acquired when consumers associate a descriptive mark with a particular source. Marks that contain a person's name, such as "Dell Computers," or describe a geographic location, such as "Kentucky Fried Chicken," are also considered descriptive marks.

      Lastly, a generic word can never receive trademark protection. A generic word is the common name for the product or service to which it attaches -- for example, calling an email service provider "email" would be a generic mark. For more information on the range of protectability of trademarks, see the section on Naming Your Business: Choosing a Name Capable of Trademark Protection.

      There are two ways to acquire rights or "ownership" in a trademark. The first is by simply using the trademark in commerce in connection with your goods or services. Trademark rights acquired through use in commerce (so-called "common law" rights) are limited to the geographical area in which the trademark has been used or is reasonably expected to be used. This limitation does not typically arise when a trademark is used online because of its wide accessibility.

      The second way to acquire rights in a trademark is through federal trademark registration. There are several benefits to federally registering your trademark. Perhaps most importantly, it puts others on constructive notice that you are using and claiming rights in the mark. This notice not only discourages others from using your mark, but also creates certain presumptions in your favor in the event of a lawsuit to enforce your trademark rights. Registration is fairly expensive, however, so you will want to consider whether the benefits of registration justify the expense. View our Trademark Ownership page for more information about obtaining trademark rights, registering a trademark, or protecting your rights once established. In addition, our section on Trademark Law and Naming Your Business provides specific information on choosing a name for your website, blog, or organization. 

      The primary goal of trademark law is to protect consumers from confusion about the source or sponsorship of goods and services. It does this by allowing a trademark owner to prevent others from using confusingly similar marks to attract customers. In other words, the law aims at helping consumers accurately identify the products and services that they want to buy and protects them from deceptive market practices. To illustrate, imagine a consumer - Sally. If Sally buys a new computer that is labeled with the distinctive Dell logo, she can be fairly sure that the computer was made by Dell, Inc. and nobody else. She can rely on Dell's reputation without worrying whether the computer was actually made by Dell or some knockoff, lower-quality company. Trademark law prohibits this kind of confusing commercial activity, and allows Dell to sue companies who engage in it for trademark infringement. In recent years, Congress has expanded the scope of trademark law to encompass harms other than consumer confusion, including dilution and cybersquatting, that we discuss below.

      Federal trademark law protects against three distinct unlawful activities:

      • Trademark Infringement: Trademark infringement happens when you use a trademark owner's trademark or a similar mark in a way that is likely to confuse the public about the source or sponsor of your products or services. This is the most common type of trademark claim, and it effectuates trademark's primary purpose of avoiding consumer confusion. See What Trademark Covers for details.

      • Trademark Dilution: Trademark dilution happens when you use a famous trademark in a way that is likely to weaken its capacity to identify the famous trademark owner's goods or services or to tarnish the reputation of the mark. The trademark owner need not show that you created consumer confusion, and dilution may occur even if your goods or services are completely different from the trademark owner's. Because of dilution law, it's probably not a good idea to call a blog "Kodak News" or "McDonald's Blog," unless it is actually about Kodak or McDonald's (in which case you should read Using the Trademarks of Others carefully). For details on trademark dilution, see What Trademark Covers.

      • Cybersquatting: Cybersquatting occurs when you register, use, or sell a domain name with a bad faith intent to profit from someone else's trademark. Congress passed the Anticybersquatting Consumer Protection Act in 1999 to stop speculators from buying up multiple domain names and selling them at exorbitant prices to the legitimate owners of the associated trademarks. Certain uses of another's trademark in a domain name may still be protected from liability for cybersquatting. For details, see the Cybersquatting section.

      Although trademark law provides trademark owners with a powerful tool for protecting the integrity of their trademarks, the law does not permit them to silence legitimate reporting, commentary, criticism, and artistic expression. As one court put it: "Trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view." L.L. Bean, Inc. v. Drake Publishers, Inc.,811 F.2d 26, 29 (1st Cir. 1987). Because of the important role that trademarks play in our cultural vocabulary, "much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark." The New Kids on the Block v. News America Publ'g, 971 F.2d 302, 306 (9th Cir. 1992).

      The good news for media creators is that the courts have careved out protections for the public's right to use the trademarks of others in criticism, commentary, news reporting and other forms of noncommercial expression. This point is of special importance not only to journalistic sites, but also to gripe sites that focus criticism on particular companies and often use the companies' trademarks in their domain names. However, while the law is solicitous of your rights of free expression, the legal doctrines in this area are complicated, and so it may be difficult to understand just how the law protects your use of a trademark in a particular act of reporting, commentary, criticism, and the like. If you want to make use of another's trademark in the course of these kinds of activities, you should consult the section on Using the Trademarks of Others.

      Finally, if you host user-generated content, such as user comments, you'll want to consider whether trademark law will hold you responsible for materials posted on your website or blog by your users. Unfortunately, the protection provided by the "safe harbors" of the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act generally do not protect you from trademark claims. For details, see Trademark: User-Generated Content.

      This guide is not a full treatment of trademark law, but it does provide what we hope is a good understanding of how to deal with the legal issues surrounding trademarks. In the sections that follow, we lay out further specifics about the principles described above.

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      What Trademark Covers

      Trademark law applies to the use of words, phrases, symbols, slogans and other "marks" to identify the source or sponsorship of goods or services. The Lanham Act, which is the federal statute that covers trademark law, makes it unlawful for you to use a trademark in a manner that confuses consumers about the source or sponsorship of goods or services. Creating this kind of consumer confusion is called trademark infringement. Trademark law's primary purpose is to protect consumers from confusion in making purchasing decisions, and it does not protect against confusion generally. If you use a trademark in a way that does not create consumer confusion, you cannot be held liable for trademark infringement.

      But, in 1996, Congress expanded federal trademark law so that it now covers some uses of trademarks that do not create consumer confusion. The federal dilution statute, found at 15 U.S.C. § 1125(c), gives the owner of a "famous" trademark the ability to bring a federal lawsuit against someone for trademark dilution. Trademark dilution occurs when someone other than the rightful owner of a famous mark uses it in a manner that diminishes its power to identify the trademark owner's goods or services regardless of consumer confusion about source or sponsorship. The dilution statute does not apply to noncommercial uses of a famous trademark, such as for news reporting, criticism, commentary, and parody.

      The following sections go into greater detail to explain what kinds of things can serve as a trademark, and what activities qualify as trademark infringement and trademark dilution.

      What Is A Trademark?

      A "trademark" is an intellectual property right in a particular "mark" used to used to identify the source or sponsor of a good or service. (Don't be intimidated by the word "mark" -- it is just a generic term for the various things that can qualify as a trademark, which we are about to describe.) A number of things can serve as a trademark (from Chilling Effects):

      • names (such as company names, product names);
      • domain names, if they label a product or service;
      • images;
      • symbols;
      • logos;
      • slogans or phrases;
      • colors;
      • product design; and
      • product packaging (known as "trade dress").

      Other types of trademarks are possible -- the key element is that the word, phrase, symbol, or design element act as a source-identifier for goods or services. You can think of it as very similar, if not identical, to the concept of branding. A trademark right is limited. It only applies to those goods or services actually identified with the trademark. A valid trademark entitles the trademark owner to stop others from selling similar goods or services using the trademark or confusingly similar trademarks; it does not entitle a trademark owner to completely lock up a word, phrase, or image and remove it from society's common vocabulary.

      Common examples of trademarks include the word "Kodak" for cameras and the familiar Apple logo for computers, music-downloading services, iPhones (another trademark), and iPods (yet another). Other examples include the Nike "swoosh" for sneakers, the "golden arches" for fast food, the Starbucks mermaid for coffee, and slogans like "There are some things money can't buy -- for everything else there's MasterCard" and "Priceless" for credit-card services. A good example of trade dress is the the particular shape of a Coca-Cola glass soda bottle. On the Internet, trademark protection may apply to domain names, websites names, website logos, and the "total image" of a website, among other things. Again, the essential ingredient for trademark protection is that the name, phrase, symbol, or whatever serve to identify the source of a good or service. Some common Internet trademarks include the word "gmail" and domain "gmail.com" for email services, the domain "nytimes.com" for online news, the name "TechCrunch" for electronic publishing services, and the name "eBay" and its familiar logo for online auction services. In addition, website operators can protect the overall "look" of their websites as trade dress, if they can establish that consumers uniquely associate that "look" with their goods or services.

      Not all words, phrases, symbols, and the like can serve as a trademark, however. The primary requirement for a valid trademark is that the mark be distinctive. For details on what kinds of words and phrases qualify as distinctive, see Naming Your Business: Choosing A Name Capable of Trademark Protection. Although the discussion focuses on names, the same points apply to other types of trademarks like symbols, words, and slogans.

      For more information on registering and acquiring ownership of a trademark, please see the Trademark Ownership section.

      Trademark Infringement and Dilution

      Trademark law gives trademark owners the ability to bring a lawsuit for trademark infringement and trademark dilution. These two distinct legal claims are discussed below. Trademark law also creates a legal claim for cybersquatting, which is discussed separately in the Cybersquatting section of this guide.

      Trademark Infringement

      An owner of a valid trademark may sue an individual or company for trademark infringement when that individual or company uses an identical or confusingly similar mark in connection with goods or services. The Lanham Act contains two statutory provisions authorizing an infringement lawsuit. 15 U.S.C. § 1114 gives the owner of a registered trademark the right to sue for infringement of that trademark. 15 U.S.C. § 1125(a) gives the owner of an unregistered trademark the right to sue for infringement of that trademark. For details on how trademark ownership arises via registration and otherwise, see Trademark Ownership. A trademark owner that wins a trademark infringement lawsuit can recover money damages and get an injunction barring the defendant from continuing its infringement. A court may also force a losing defendant to pay the trademark owner's attorneys' fees under "exceptional circumstances" -- basically, when the court determines that the defendant willfully or intentionally infringed the trademark.

      The key to an infringement claim is a likelihood of confusion between the defendant's use of a mark and the trademark owner's use of its trademark. While different courts use slightly different standards to make this comparison, the factors most commonly used to determine the likelihood of confusion are as follows:

      • the strength of the plaintiff's mark;
      • the similarity of the plaintiff's and the defendant's goods or services;
      • the similarity of the trademark used by the plaintiff and the trademark used by the defendant;
      • the marketing channels used for their respective goods or services;
      • the degree of care likely exercised by the purchaser of their respective goods or services;
      • the defendant's intent in selecting the trademark;
      • the likelihood of expansion of their respective product or service lines; and
      • evidence of actual confusion.

      The more similar the marks used, the more likely that consumers will be confused. In addition, confusion tends to arise when the plaintiff's and the defendant's goods or services are similar and they use similar marketing channels. The rationale is that, if the parties' goods or services are dissimilar, the ordinary consumer will not be confused about whether the goods or services come from the same source. For example, given the existence of Pepsi brand soda, someone selling soft drinks under a slightly different brand name, such as "Pipsi" or "Peps," would almost certainly lose a trademark infringement lawsuit. On the other hand, a company selling pet grooming services under the "Pipsi" or "Peps" brand name would be more likely to successfully defend against an infringement suit because ordinary consumers would probably not assume that Pepsi had moved into the pet grooming business. Needless to say, this example is a simplification of what you might see in a real case. The multi-factor test can result in complex line drawing, and it is often difficult to tell whether a certain use of a trademark will or will not infringe a trademark owner's rights. This is one of the primary reasons why trademark lawsuits are expensive to defend.

      When it comes to online publishing, there are a few points to remember. First, a plaintiff cannot win an infringement lawsuit without proving that the defendant used a confusingly similar mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services. If you operate a purely noncommercial website (i.e., you do not sell any goods or services, and you don't host advertising or solicit donations in connection with your services), then you may be able to defeat a lawsuit without even getting to the likelihood of confusion question. We discuss this issue and other possible defenses to an infringement lawsuit in the Using the Trademarks of Others section.

      Second, even if you do sell advertising or solicit donations, you primarily need to worry only about trademarks used by businesses or individuals doing work that is similar to yours. Before adopting a trademark (whether a domain name, a title for your blog, a logo, or whatever), you should look around at other websites doing work similar to yours to see if they are using the same or similar trademark. When you consider whether something is "work similar to yours," take a broad view. This could be anything from a journalism site, a blog, some kind of interactive web service, something tech-y with a heavy online presence, etc. Keep in mind that there is little certainty in this area, and you will just have to do your best in making the call. There is one important caveat. As discussed below, owners of famous trademarks can protect their trademarks with a dilution claim, even if there is no likelihood of confusion. So you may want to avoid using famous trademarks altogether.

      Third, if you use a trademark owner's trademark in the process of criticizing, commenting, or reporting on the trademark owner, its activities, or its goods or services, you will have a good argument that no reasonable consumer would be confused into thinking that the trademark owner is the source or sponsor of your work. Take news reporting, it stretches credulity to imagine that consumers get confused about source or sponsorship when the New York Times reports on Wal-Mart's most recent earnings release or Ford's new hybrid car. The lack of confusion should be even more clear when it comes to criticism. For example, in Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), the United States Court of Appeals held that there was no likelihood of confusion between a website criticizing the religious and social views of Reverend Jerry Falwell and the Reverend's own services, even when the website made use of the domain name "www.fallwell.com." The court noted, in relevant part: "After even a quick glance at the content of the website at www.fallwell.com, no one seeking Reverend Falwell's guidance would be misled by the domain name-www.fallwell.com-into believing Reverend Falwell authorized the content of that website. No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible."

      Trademark Dilution

      An owner of a famous trademark may sue an individual or company for trademark dilution when that company or individual uses its trademark in connection with goods or services in a way that is likely to dilute it. See 15 U.S.C. § 1125(c). A trademark owner that wins a trademark dilution lawsuit can get an injunction barring the defendant from continuing its dilution, and in rare circumstances it can obtain money damages and attorneys' fees. To make out its case, the trademark owner need not show that the defendant's use of its trademark causes a likelihood of consumer confusion. The parties to the lawsuit need not be in competition, and the goods or services in question need not be similar. Importantly, the trademark in question must be "famous," which means pretty much what it sounds like. If an ordinary person would recognize a trademark as a household name, then it probably qualifies as famous.

      There are two distinct types of dilution, blurring and tarnishment. Blurring refers to the loss of uniqueness of a trademark because of an association with goods or services other than those of the trademark owner. When Congress passed the statute, it indicated that the law would apply to the sale or advertisement of goods like hypothetical "Kodak Pianos," "Buick Aspirin," and "Dupont Shoes." Note that blurring can occur even if no reasonable consumer would believe that Kodak had started making pianos or that Buick had started making aspirin. Blurring is an extremely expansive concept -- it could encompass almost any unauthorized use of a famous trademark, so long as the defendant used the mark to identify its own goods or services, rather than to engage in commentary, criticism, news reporting, and like activities. Tarnishment occurs when the defendant's use of the famous trademark harms its image in the minds of consumes, such as by associating it with immoral or scandalous goods or services. For example, the lingerie seller Victoria's Secret sued a sex shop called "Victor's Little Secret" for tarnishing its famous trademark.

      Because of the potential breadth of trademark dilution, Congress wanted to ensure that trademark owners could not use the law to silence speech protected by the First Amendment. To this end, Congress created specific exceptions to the dilution statute for the following uses of a trademark:

      • any fair use of a famous mark in connection with comparative advertising or parody, criticism, or commentary upon the famous mark owner or the goods or services of the famous mark owner;
      • all forms of news reporting and news commentary; and
      • any noncommercial use of a mark. See 15 U.S.C. § 1125(c)(3)

      These exclusions provide a good deal of protection for citizen media creators, but the courts have yet to provide exact or consistent meanings for many of these terms, such as "fair use", "news reporting," and "noncommercial use." In the most favorable cases, courts have determined that the dilution law does not apply to any speech that does more than propose a commercial transaction. See, e.g., Mattel Inc. v. MCA Records, 296 F.2d 894, 906-07 (9th Cir. 2002); Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792, 812 (9th Cir. 2003); Smith v. Wal-Mart Stores, No. 1:06-cv-526-TCB, slip op., at 81-83 (N.D. Ga. Mar. 20, 2008). Under this view, you could not be held liable for using a famous mark in nearly all forms of criticism, commentary, parody, and news reporting. But not all courts have embraced this view. We take up these issues and other defenses to trademark infringement and dilution in the Using the Trademarks of Others section.

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      Securing Trademark Rights: Ownership and Federal Registration

      There are three ways to secure your rights in your trademark: (1) use the mark in commerce in connection with a good or service; (2) register the trademark with your state; or (3) register the trademark with the United States Patent and Trademark Office ("USPTO").

      Once you use a trademark in commerce in connection with a good or service, you begin to acquire what are called "common law" rights in the mark, so long as it is not confusingly similiar to or dilutive of another's mark. The common law rights you gain in a trademark through use are limited to the geographic area in which you have actually used the mark, or those areas into which you have demonstrable plans to expand your use (the so-called "zone of natural expansion"). This limitation is less important for online ventures, however, as availability of your services over the Internet gives rise to a presumption of national trademark rights. It is important to note that if someone else is already using a confusingly similiar mark, you will be unabale to obtain rights in your mark and could potentially be liable for trademark infringement or dilution. If you intend to obtain rights in a trademark through simple use in commerce, then you must be sure to do an effective search of existing trademarks before you begin using it in connection with your good or service. Please see our section on Naming Your Business: Searching for the Trademarks of Others for details. For more information on how to acquire trademark rights, see Sarah Bird's excellent post, Trademark Basics: Be First in Your Market, Be Distinctive, and Don't Confuse the Consumer.

      You may also choose to register your trademark with your state or with the United States Patent and Trademark Office, but you are not required to do so in order to bring a lawsuit to protect it against infringement or dilution. State registration is likely to be both cheaper and easier than federal registration, but is probably not the best option for online activities, which by definition have a national and international scope. However, if you would like to find out more about your state's registration process, you can contact your state authority responsible for trademark matters.

      Registering a trademark with the USPTO puts the country on notice that you are using a certain mark, and also provides additional protections and procedural benefits if you need to litigate your rights. However, this process is fairly long (usually taking a year or more) and potentially expensive (the fees start at $275). We provide more information about the federal registration process below. 

      Federal Registration

      Benefits of Federal Registration

      As noted above, federal trademark registration is not required for you to protect your trademark. However, registration provides some advantages. Specifically, registering a trademark with the USPTO provides the following benefits:

      1. a public record of the trademark claim, which puts others on notice;
      2. presumptive evidence of trademark ownership and exclusive right to use the trademark throughout the U.S. (if you sue to protect the trademark, this will help you make your case);
      3. a U.S. registration can be used as the basis for obtaining registration in foreign countries; and
      4. the ability to file a suit related to the trademark in a federal court and recover the defendant's profits and up to three times your actual damages, as well as your attorney fees if the court finds the case to be exceptional.

      Because federal registration is expensive, you'll want to weigh these benefits against the out-of-pocket costs of obtaining a registration.

      How to Register

      Once you have decided to federally register your trademark, you can file the necessary forms to apply for federal trademark registration with the United States Patent and Trademark Office online. The cost is between $275-375 per mark for each International Class in which you seek registration, depending upon the filing method you chose.

      The USPTO estimates that filling out the form should take about 15-20 minutes, although first time filers are likely to take longer. A federal application must contain at least four things, in addition to the filing fee: (1) the owner's name and address, (2) a clear drawing of the mark (which can be automatically generated from text if you do not have a logo); (3) a description of the goods or services for which the mark is or will be used and the corresponding International Class number(s); and (4) the filing basis.

      You can register your trademark for use in connection with more than one set of goods or services, but you will have to pay an additional filing fee if the goods and services you list fall into more than one International Class. The USPTO has available a searchable index of identifications for goods and services that they recommend you use for your application, but you can also type in something else if your product or service does not fit into one of these categories. If your business does not clearly fall within one category of goods or services, you may want to consider filing in more than one class, as this will would give you the greatest protection and flexibility. The downside to seeking registration in more than one class, aside from the additional filing fees, is that you are more likely to encounter a conflict with someone else who is using the mark or a similar one in another field or industry. Furthermore, if you do expand in the future, you can apply for a new registration at that time (unless someone else has already registered the mark in that area).

      There are two different filing bases for a new trademark application: use based, or intent-to-use.  If you have already begun using the trademark in interstate commerce, you should file a use based application.  To do so, in addition to filling out the application, you must supply the USPTO with a specimen showing the mark as it is used in connection with your goods or services, as well as the date(s) on which you first used the mark anywhere and in interstate commerce.  If you have not yet begun using the trademark, you should file an intent-to-use application. You will be required to submit a specimen and date of first use later in the application process before your mark is allowed to register.

      If this process sounds too complicated for you, you can hire an attorney to do it. Trademark registration is usually fairly straightforward for attorneys who specialize in it, so it is relatively inexpensive.

      Within about 3-6 months after you file the registration forms an attorney with the USPTO will examine and research your application. There are several categories of marks that the USPTO will refuse to register, including "immoral, deceptive, or scandalous" marks (such as those including foul language), those that disparage or falsely imply a connection to other people or entities, and marks that are confusingly similar to others that are already registered.

      The USPTO attorney may contact you to resolve any issues in your application, by issuing what's called an "Office Action." If you receive an Office Action, you will have six months in which to respond to any issues raised by the examining attorney. If the issues raised in the Office Action are too complex, you may want to hire an attorney to draft your response.

      If the USPTO approves your application, it will publish your trademark in the Official Gazette, and anyone who believes that they would be damaged by its registration (such as a senior user of a confusingly similar mark) will have thirty days in which to oppose registration of the mark. If no one opposes (or requests an extension of time to oppose) within those thirty days, the USPTO will either approve your mark for registration (if you have already submitted an acceptable specimen of use) or issue a Notice of Allowance (if your application is still based on an intent-to-use). If the USPTO issues a Notice of Allowance, you will have six months from the date on which it was issued to either submit an acceptable specimen, or request an additional extension of time in which to do so.  You can request up to five 6-month extensions of time in which to submit a specimine of use. All told, the registration process can easily take 1-2 years, but once it is approved your rights date back to the day on which you filed your application.

      For additional details on registering a trademark, see the Chilling Effects FAQ on Trademark.

      Maintaining Your Trademark Rights

      Trademark rights can last indefinitely so long as the trademark owner continues to use the mark in commerce to identify goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms upon filing an affidavit of continued use, along with a specimen of use. In addition, between the fifth and sixth years after the date of initial registration, the registrant must file an additional affidavit confirming that the mark is still in use in commerce in order to maintain the registration. If no affidavit is filed, the registration is canceled. At this time, if the mark has been in continuous use in interestate commerce for five years following the date of registration, the owner can file an affidavit of incontestibility that, if accepted by the USPTO, will significantly narrow the grounds upon which a third party can seek to have the registration cancelled.  

      In addition to renewing your registration (should you choose to register), you need to take some additional steps to make sure that you do not lose your trademark rights:

      • Periodically check whether another individual or company is using your trademark in a way that is confusingly similar to your use of the mark. If you see something like this, you should probably send a cease-and-desist letter and contemplate filing a lawsuit. Otherwise, a court might later determine that you have abandoned your trademark. We know that this may be objectionable to some, but it is one of the costs of asserting trademark rights. Remember that nothing requires you to acquire or enforce trademark rights in the first place.

      • Try to use the mark continuously. If you stop, keep a record of why you stopped, and your plans to resume use of the mark in the future. Otherwise, a court might determine that you have abandoned it.

      • Discourage others from using your trademark as an ordinary verb or noun, or it might become generic. For example, if consumers refered to xeroxing documents instead of photocopying them, blowing their noses with kleenex instead of facial tissues, and googling things instead of using a search engine, at some point the owners of the marks Xerox, Kleenex, and Google would lose the ability to prevent others from using those terms to describe their own products or services. This in fact happened to aspirin (formerly a trademark of Bayer), cellophane (formerly held by DuPont), and escalator (created by the Otis Elevator Company), among many other words that we now take for granted. The basic test is whether consumers generally understand a word as referring to the products or services of one company or individual (e.g., Xerox with a capital "X") or as including all makers of a certain product or service (e.g., Canon and HP make a xerox machine with a lowercase "x"). Admittedly, it is not easy to control the public's diction, but you can start yourself by only using the term in its trademark sense.

      Trademark Notice

      You can choose to include a trademark notice next to your trademark, but you are not required to do so in order to protect the mark. A trademark notice indicates to others that you claim ownership of the trademark in connection with the goods or services in question, warning them against possible infringement. Any time you believe you have a rightful claim to a mark you may designate the mark with a TM (for goods) or SM (for services). You do not have to register the mark to use these notices. In addition, if you choose to seek federal registration of your trademark, you can use these notices during the registration process. If you obtain a federal registration, you will probably want to use the more powerful ® notice, which can only be used after a successful registration with the USPTO. Even then, you can only use the ® notice in connection with the goods or services listed in your application for registration.

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      Using the Trademarks of Others

      An important question for bloggers, citizen media creators, and other online publishers is whether trademark law limits their ability to engage in reporting, commentary, criticism, and other forms of political, social, and artistic expression. There is a threat, should trademark law become too robust, that companies and other trademark holders might use it to silence commentary, criticism, and unfavorable reporting. Such a "right to control language" would offend the First Amendment and seriously undermine the quality of public debate on issues of fundamental importance. The good news is that courts have consistently protected the public's right to use the trademarks of others in order to engage in criticism, commentary, news reporting and other forms of noncommercial expression. As long as what you're doing is really commentary, criticism, or reporting (etc.), and not a surreptitious attempt to sell goods or services, or to deceptively attract customers or readers you otherwise would not have had, you should be able to defeat a trademark claim brought against you. The bad news is that the law relating to this intersection of trademark law and free expression is complex and confusing. Neither Congress nor the courts have developed a simple and clear rule that protects your rights to use the trademarks of others for free speech purposes; instead they've developed a complex array of defenses to trademark claims that even lawyers find difficult to untangle. This makes it hard for a defendant to get a trademark lawsuit dismissed quickly with little expense, and it leaves bloggers and citizen media creators vulnerable to intimidation through the unscrupulous use of cease-and-desist letters. (The ideas here are based on William McGeveran's excellent article, Four Free Speech Goals for Trademark Law.)

      The following sections briefly explain the legal protections available to you and apply them to some of the common situations you might face in the course of your online activities.

      How Trademark Law Protects Your Right to Free Expression

      As discussed in detail in What Trademark Covers, the main purpose of trademark law is to avoid consumer confusion, and the fundamental question in any trademark infringement lawsuit is whether the defendant's use of a trademark creates a likelihood of confusion between the defendant's goods or services and the plaintiff's. Therefore, an obvious first line of defense in any trademark infringement lawsuit is that there is no likelihood of confusion. As a general matter, if you are reporting on, commenting on, or criticizing a trademark owner, most ordinary consumers will not be confused about whether the company or organization is the source or sponsor of your work. You can reduce the likelihood of confusion further by avoiding a website design that looks like the trademark owner's site or resembles its product packaging, and you should never festoon your website with a company's logo (but isolated use when relevant to a discussion is OK). You might also place a disclaimer on your site saying that you are not affiliated with the company in question and providing a link to its official site, but this usually isn't necessary unless you operate a gripe site or fan site focusing on the trademark owner. (If you are just writing a post about Company X, there is no need provide a disclaimer just because you use the words "Company X.")

      If someone threatens you with a lawsuit or sues you for trademark dilution, then a lack of consumer confusion will not help you. Here, one obvious line of defense is to argue that there is no likelihood of dilution. Federal and state dilution law protects a trademark owner against the whittling away of the distinctiveness of its famous trademark by association with other goods or services; it does not give a trademark owner the right to shut down all unflattering speech about it. If you do not associate a famous trademark with your own goods or services, then there can be no dilution (or at least that's how your argument goes). A court might agree that, by definition, using a trademark for purely expressive purposes (e.g., criticism, commentary, reporting, parody) is not a use in connection with a good or service and thus cannot cause dilution. Your argument on this point is especially strong if you do not host advertisements on your website and do not link to other websites selling goods or services (especially to your own commercial websites). But you might win this point even if you sell advertising, so long as you use the trademark in criticism, commentary, reporting, or other purely expressive activities, and not in advertising or other promotion of your site. This argument overlaps with one of the defenses discussed below -- noncommercial use.

      In addition to these general arguments against infringement and dilution, there are a host of other free expression defenses to a trademark claim. This is where the legal terrain gets complicated and the terminology gets a bit arcane. If the explanations below make your eyes glaze over, feel free to skip down to the next section, Some Free Expression Uses of Trademarks, where we explain how these defenses work in practical situations. The important free expression defenses are as follows:

      • Descriptive Fair Use: Found at 15 U.S.C. § 1115(b)(4), the descriptive fair use defense protects your ability to use ordinary words to describe your own goods or services, even if those words happen to be part of someone's trademark. It also protects the use of your own name in connection with your business or other activities. In KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004), the U.S. Supreme Court made clear that this defense applies to bar liability even if some consumer confusion results. Examples of descriptive fair use include using the term "sweet-tart" to describe a cranberry drink despite a candy company's "SweeTarts" trademark for candy; and using the domain name samadamsformayor.com despite a beer company's "Sam Adams" trademark for beer (see our database entry). In another interesting case from our legal threats database, Andrew Oh-Willeke of the Wash Park Prophet blog used the expression "Mr. Trademark" to make fun of a man who files a lot of questionable trademark lawsuits. A few days later, the vice-president of a trademark search firm called "Mr. Trademark ®" wrote Oh-Willeke to complain about the blog's use of his company's trademark. Mr. Oh-Willeke correctly stood his ground, arguing that he was not using the words "Mr. Trademark" to sell goods or services, but to describe an individual unrelated to Mr. Trademark ®. Because Oh-Willeke was not referring to his own goods or services but to a third party, this case presents a slight variation on the usual case of descriptive fair use, but the underlying reason for prohibiting liability still applies.
      • Nominative Fair Use: The nominative fair use defense protects your ability to use a trademark to refer to a trademark owner or its goods or services for purposes of reporting, commentary, criticism, and parody, as well as for comparative advertising. Courts impose three requirements on defendants who want to take advantage of the nominative fair use defense: (1) the trademark owner, product, or service in question must not be readily identifiable without use of the trademark; (2) the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner. This defense works against trademark infringement lawsuits. The federal dilution statute, found at 15 U.S.C. § 1125(c)(3)(A), also makes nominative fair use a complete defense to trademark dilution claims. Some examples of nominative fair use include a newspaper's use of the "New Kids on the Block" trademark to create and report on polls asking readers questions about the musical group's popularity; another newspaper's use of the trademark "Boston Marathon" in order to report on the sporting event; and a photographer's use of "Barbie" dolls in parody photographs that criticized Mattel's famous toy and the values she represents. Another example from our database is law blogger Eric Turkewitz's use of the Avis and Hertz logos in a blog post about a lawsuit involving these two companies. (Note, however, that there is some question about whether using a logo, rather than just a textual reference, would qualify as a fair use under the three-part test outlined above.)
      • News Reporting and News Commentary: The news reporting and news commentary defense, found at 15 U.S.C. § 1125(c)(3)(B), is a complete defense to a trademark dilution claim. The law is not clear on what exactly qualifies as news reporting and news commentary, but one court has applied this defense to stop a dilution claim against a blogger who wrote critical commentary about a company that resells items on eBay. See BidZirk, LLC v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007). There is no explicit news reporting defense to trademark infringement claims, but courts are likely to protect the use of a trademark in news reporting and commentary based on the nominative fair use defense and because there is no likelihood of confusion.
      • Noncommercial Use: There are two types of noncommercial use defenses: one for trademark infringement and one for trademark dilution.
      • If someone sues you for trademark infringement, you can defend yourself by arguing that you did not use the trademark "in connection with a good or service." Unfortunately, different courts have widely different views about what qualifies as "use in connection with a good or service" on the Internet. Some courts have found that simply registering a domain and diverting consumers away from another website may constitute "use in connection with a good or service." Other courts have rejected this view, but found that hosting advertisements or linking to commercial websites is sufficient to create "use in connection with a good or service." For example, in Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005), the court held that a gripe site that hosted no advertising, did not directly link to any commercial websites, and was devoted to critical commentary was not "a use in connection with a good or service." It therefore dismissed the plaintiff's trademark infringement lawsuit against the gripe site operator. In another case, Taubman v. Webfeats, 319 F.3d 770 (6th Cir. 2003), the defendant ran a number of websites relating to a shopping mall coming to his area. On one site, he included a link to his girlfriend's shirt business, and the court held that this was sufficient for the website and its domain name to be a "use in connection with a good or service." On another site, with the domain name "taubmansucks.com," the defendant included no commercial links, and the court concluded that this website and its domain name were "purely an exhibition of Free Speech" and not a "use in connection with a good or service."
      • If someone sues you for trademark dilution, you can argue that your use of the famous trademark was "noncommercial." Congress created this defense, found at 15 U.S.C. § 1125(c)(3)(C), out of concern that dilution claims would impinge on the First Amendment rights of critics and commentators. Following Congress's lead, the courts have interpreted this defense broadly, holding that the term "noncommercial" applies to any speech that does more than propose a commercial transaction. It is easier to show that your use of a trademark fits into this category than to show that it was not "in connection with a good or service." Under this test, if you use a trademark owner's famous trademark to report on, comment on, or criticize the trademark owner or its goods or services, your use is likely "noncommercial," even if you host advertising or link to commercial sites. This defense would also likely protect you if you used a trademark owner's famous mark in a parody or other work of political or artistic expression. Note, however, that some early cases took a more restrictive view, and found that some gripe sites were "commercial" because of advertising and links to commercial websites. While most recent cases have moved away from this view, the precise state of the law in this area is uncertain.
      • First Amendment Defenses: Courts have recognized a number of additional "First Amendment" defenses in particular situations. For example, in Rogers v. Grimaldi, 875 F2d 994 (2d Cir. 1989), the Second Circuit Court of Appeals held that a filmmaker could use Ginger Rogers' trademark (her name) in the title of a film called "Ginger and Fred," even though the film was not primarily about Rogers. The court indicated that trademark law should be applied to artistic works "only where the public interest in avoiding consumer confusion outweighs the public interest in free expression." The specific details of these defenses is beyond the scope of this guide; the point to keep in mind is that courts may act to protect your right of free expression even if what you are doing doesn't fit nicely into one of the categories above.

      Some Free Expression Uses of Trademarks

      So how does all this apply in the real world? This section gives some guidance on how the free expression defenses may apply to your activities.

      News Reporting

      Trademark law does not let a trademark owner exert its trademark rights to stop news reporting about it or its products or services. You see proof of this everyday on the front pages of newspapers, the homepages of news websites, and countless blogs. Mainstream reporters and non-traditional journalists routinely report on earnings announcements, job lay-offs, and accounting scandals without worrying that they are infringing or diluting the trademarks of the companies and organizations they report on. There are several legal bases for this result: there is no risk of confusion between the news source and the trademark owner; nominative fair use protects this use of the trademark owner's mark; and the federal dilution statute expressly exempts "news reporting and news commentary" from a dilution claim. See 15 U.S.C. § 1125(c)(3)(B). As noted above, one court has held that a blogger's critical commentary on a company qualified as "news reporting and news commentary." See BidZirk, LLC v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007). This is just one case, however, and it remains to be seen how the courts will define "news reporting and news commentary" in the face of different kinds of new media that blur the distinction between reporter and consumer of news.

      There is a wrinkle. It is a common practice for bloggers to use the logo of a company when they post about it. For example, TechCrunch often does this:

      Although the practice is widespread, it is beginning to draw fire from trademark owners. As noted above, late last year a representative of Avis requested that law blogger Eric Turkewitz cease-and-desist from using its logo in a post about a lawsuit involving the company (see Turkewitz's post). The law is not entirely clear on this point. The nominative fair use defense may not apply because using the logo is not strictly necessary for describing the trademark owner or its products or services. Nevertheless, courts would probably find that use of a logo in the process of news reporting is not likely to confuse consumers. Without confusion, there is no trademark infringement. And, as noted above, there is a categorical exemption from dilution claims for news reporting. So, it looks like using logos for illustration and visual stimulation during news reporting is OK. The one possible weakness is that the logo is not necessarily relevant to the substance of the news reporting, so a court might view its use as outside the news reporting function. Still, confusion and dilution seem highly unlikely in this context.

      Commentary and Criticism

      Trademark law does not permit a trademark owner to use its trademark rights to silence commentary and criticism. As with news reporting, courts recognize the important First Amendment values at stake and usually deny efforts by trademark owners to encroach on legitimate commentary and criticism. There are several legal bases for this result: there is no risk of confusion between the commentator and the trademark owner, and nominative fair use may protect this use of the trademark owner's mark. Additionally, courts are likely to find that your use of a trademark in commentary or criticism is "not in connection with a good or service" and "noncommercial" (the argument is especially strong for the latter category). But note that some courts may find your use of a trademark for criticism and commentary to be commercial if you host advertising or link to commercial websites. In any event, to defeat a trademark dilution claim, you do not even need to show that your use is noncommercial. The federal dilution statute creates a categorical exemption for "criticizing . . . or commenting upon the famous mark owner or the goods or services of the famous mark owner." 15 U.S.C. § 1125(c)(3)(A)(ii).

      The issue of logos comes up with commentary and criticism as well. As with news reporting, using a logo to illustrate or liven up criticism or commentary is probably OK from a trademark perspective. See above for details.

      Domain Names

      Using someone else's trademark in your domain name is a risky proposition because courts do not necessarily extend the same protections to domain names as they do to commentary, criticism, and news reporting. Early on in the development of Internet law, many cases held that websites could not use a company or organization's trademark in a confusingly similar domain name, even if the website accessible under that domain name criticized the trademark owner, and its content made clear that it was not sponsored by or affiliated with the trademark owner. The reasoning was that a critic has no free speech right to confuse Internet users into thinking that they are entering someone else's website in order to expose them to a critical message.

      However, there is a new trend in the cases towards allowing "gripers" and other critics to use domain names that are nearly identical to the trademark owner's trademark, so long as the underlying website does not confuse Internet users into thinking it is affiliated with the trademark owner and it does not engage in commercial activity. For example, in Falwell v. Lamparello, 420 F.3d 309 (4th Cir. 2005), the Fourth Circuit Court of Appeals denied a trademark infringement claim based on the defendant's use of the domain name "fallwell.com" in connection with a website criticizing the social and religious views of the Reverend Jerry Falwell. The court held that it "must look not only to the allegedly infringing domain name, but also to the underlying content of the website" and concluded that, when viewed in this context, the defendant's use of the domain name created no likelihood of confusion. In TMI Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004), the Fifth Circuit Court of Appeals denied a trademark dilution claim based on the defendant's use of a developer's trademarked name in her gripe site's domain name. The court determined that the defendant's site was noncommercial because it was dedicated to critical consumer commentary and did not host advertising or links to commercial sites. The court did not treat the domain name as separate from the underlying website, and so it dismissed the entire dilution claim.

      It is still not clear which view of the law will prevail. One way to help yourself avoid trademark liability is to include something in the domain name itself that makes it clear that you are criticizing or commenting on the trademark owner, such as a "sucks" designation. This brings the domain name back within the category of commentary and criticism and makes your First Amendment arguments more persuasive. For example, in Taubman v. Webfeats, 319 F.3d 770 (6th Cir. 2003), the court held that the defendant's use of the domain name "taubmansucks.com" was "purely an exhibition of Free Speech, and [federal trademark law] is not invoked." Similarly, in Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp.2d 1161 (C.D. Cal. 1998), the court held that the defendant's use of "ballysucks" in a sub-domain for a website engaging in critical commentary did not constitute trademark infringement or dilution.

      Domain name disputes often involve cybersquatting claims under the Anticybersquatting Consumer Protection Act. For details, see the Cybersquatting section.

      Gripe Sites and Fan Sites

      The two sections immediately above outline most of the legal issues related to running a gripe site. Your use of a trademark owner's trademark in commentary and criticism on the website itself is largely protected because there is little likelihood of confusion, because use of the trademark may be nominative fair use, and because there is a statutory exemption from dilution claims for "criticizing . . . or commenting upon the famous mark owner or the goods or services of the famous mark owner." You can help your case by including a prominent disclaimer on your website, making clear that your site is not "official" and providing a link to the trademark owner's site. Such disclaimers are not foolproof, but they go a long way towards reducing consumer confusion. Use of the trademark owner's mark in a domain name is more risky, but you may reduce this risk by including some critical remark like "sucks" in the domain itself. This may make it harder for you to gain the attention of Internet users trying to find the trademark owner's official website, but this may be the price you have to pay for more security from a trademark claim. In addition, if you refrain from hosting advertising and linking to commercial websites, including the websites of companies that compete with the trademark owner, your case is even better. Gripe site cases often involve cybersquatting claims, so you will want to look at the Cybersquatting section of this guide for additional information.

      The legal issues surrounding fan sites are more uncertain. In some cases, you may be able to characterize the content of your fan site as "news reporting," if what you are doing is following the activities or new products and services of the trademark owner. In that case, all the protections for news reporting discussed above would apply. Also, you may have a case that your fan site's use of the trademark owner's trademark is a nominative fair use, so long as the appearance of your site does not create confusion about whether or not you are sponsored by or affiliated with the trademark owner. Again, a prominent disclaimer making clear that your site is not "official" and providing a link to the trademark owner's site may help your case, but is not necessarily foolproof. When registering a domain name, you may want to include some term that makes clear that you are running a fan site, such as a "fans," or you may want to avoid the trademark altogether. See the Cybersquatting section for additional details on domain names. As always, if you refrain from hosting advertisements and linking to commercial websites, you have a better chance of defending against a trademark lawsuit.

      Fan sites often raise other legal issues, such as copyright infringement and right of publicity claims. For additional information, consult the copyright section and our forthcoming section on rights of publicity and misappropriation.

      Parody

      Courts generally recognize that parody is entitled to First Amendment protection in a trademark infringement lawsuit, and the federal dilution statute expressly exempts parody from dilution claims. See 15 U.S.C. § 1125(c)(3)(A)(ii). In addition, a number of courts have held that parodies are "noncommercial" uses exempted by the federal dilution statute. However, simply labeling your work "parody" will not be enough to defeat an otherwise legitimate claim of trademark infringement or dilution. The courts take a relatively narrow view of what qualifies as a "successful" parody. A parody must walk the fine line between evoking the original (i.e., the trademark) and making clear that it is not the original (i.e., it is something new commenting on or criticizing the trademark owner). Moreover, the parody must be aimed at the trademark owner or its goods or services, not at an unrelated third party or issue. In the final analysis, if your parody confuses consumers, and they believe that the trademark owner is the source or sponsor of the parody, then you may be liable for infringement or dilution.

      Putting your parody in a commercial context -- like using it in an advertisement or fake advertisement, or selling merchandise like coffee mugs or t-shirts emblazoned with the parody -- may make it harder for you to defend against a trademark lawsuit. But this is not necessarily the case. For example, in MasterCard International Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404 (S.D.N.Y. Mar. 8, 2004), the court upheld Ralph Nader's use of MasterCard trademarks in a parody political advertisement, finding that there was no likelihood of confusion and that his use of the marks were political speech and thus "noncommercial." In another case, Mattel Inc. v. MCA Records, 296 F.2d 894, 906-07 (9th Cir. 2002), the Ninth Circuit Court of Appeals held that the band Aqua's use of Mattel's "Barbie" trademark in the parodic song "Barbie Girl" was protected by the First Amendment and "noncommercial," even though the band sold the song for money. The court found that Aqua's parody successfully lampooned the Barbie image and commented humorously on the cultural values the doll represents, and therefore was protected by the First Amendment. Finally, in Smith v. Wal-Mart, 537 F. Supp.2d 1302 (N.D. Ga. 2008), the defendant created a series of parodies using Wal-Mart's logos and slogans, in which he likened the retail giant to Al-Qaeda and the Nazis. He not only posted these parodies on his websites, but sold CafePress t-shirts and other merchandise containing the designs. The court held that the defendant's designs were successful parodies of Wal-Mart's trademarks, that there was no likelihood of confusion between his websites or goods and Wal-Mart's, and that his use of the trademark was "noncommercial," even though he sold the designs to the public on t-shirts and other merchandise.

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      Cybersquatting

      The term "cybersquatting" refers to registering, using, or selling a domain name with a bad faith intent to profit from someone else's trademark. In the 1990s, when many companies were just beginning to realize the significance of the Internet, cybersquatters would register domain names using trademarks in the hopes of later selling the domain names to trademark holders at exorbitant prices. Congress cracked down on this problem in 1999 when it passed the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d). The ACPA gives a trademark holder the ability to bring a federal lawsuit against someone for cybersquatting. A cybersquatting claim is related to trademark infringement and trademark dilution, discussed in What Trademark Covers, but it is a separate legal claim with its own requirements.

      Although not many citizen media creators speculate on domain names for profit, an online publisher may have other reasons to worry about a potential cybersquatting lawsuit. A website operator or blogger might want to register a domain name that includes a company's or individual's trademark in order to criticize, comment, or report on the activities of the trademark owner. For instance, gripe sites like fallwell.com and lowes-sucks.com, as well as fan sites like MarianoRivera.com, have been sued or threatened with suit because of their domain names. Similarly, in 2007 the Academy of Motion Picture Arts and Sciences sued the academy awards-related website, Oscarwatch.com (now operating as Awards Daily), for violation of the ACPA, among other trademark claims. The case settled without a court determining the merit of the Academy's claim.

      In most cases, if the trademark is relevant to the content of your website or blog, and you use the mark to engage in legitimate commentary, criticism, or reporting, there is a good chance that a court would not hold you liable for cybersquatting. This is not a sure thing, however, and it does not mean that a trademark owner will not threaten you with a lawsuit or file a lawsuit against you. If you are faced with such a situation, it is important to understand what the ACPA prohibits and what it does not. Below we provide more detailed information on the basics of a cybersquatting claim.

      What Activities Violate the ACPA

      Under the Anticybersquatting Consumer Protection Act, a plaintiff needs to show that the defendant registered, used, or sold a domain name containing language that is identical or similar to the trademark owner's trademark with a bad faith intent to profit from the domain name. A trademark owner that wins a cybersquatting lawsuit can recover money damages (including maximum statutory damages of $100,000 per act of cybersquatting) and get an order canceling the defendant's registration of the offending domain name or transferring it to trademark owner. A court may also award attorneys' fees to a winning trademark owner under "exceptional circumstances" -- basically, when the court determines that the defendant willfully or intentionally engaged in cybersquatting.

      The key question in a cybersquatting case is whether the person registering, using, or selling a domain name has a bad faith intent to profit. Courts consider nine factors in determining whether a defendant has such a bad faith intent:

      1. the trademark or intellectual property rights of the defendant in the domain name;
      2. the extent to which the domain name consists of the defendant's name;
      3. the defendant's prior use of the domain name in connection with the bona fide offering of goods or services;
      4. the defendant's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
      5. the defendant's intent to divert consumers from the mark owner's online location to a site accessible under the domain name, either for commercial gain or with an intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
      6. the defendant's offer to transfer or sell the domain name to the trademark owner or any third party for financial gain;
      7. the defendant's giving false contact information when applying for registration of the domain name;
      8. the defendant's registration or acquisition of multiple domain names that are identical to or confusingly similar to the trademarks of others; and
      9. the extent to which the trademark incorporated in the defendant's domain name registration is or is not distinctive.

      While the courts have applied these factors in different ways, and the result of a multi-factor test like this is hard to predict in advance, a few significant points are worth mentioning:

      Noncommercial use rarely amounts to bad faith. Courts often give great weight to the fourth factor -- a bona fide noncommercial or fair use of the trademark in a site accessible under the domain name. The legislative history of the ACPA makes clear that a "noncommercial use" includes "comment, criticism, parody, news reporting, [and similar activities]." S Rep. No. 106-140, at *9. If you use your website to engage in these activities and do not offer goods or services for sale or include links to commercial websites, you are more likely to succeed against a cybersquatting claim. For example, in Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), the court found that a website operator did not have a bad faith intent to profit when he used the website in question to criticize the social and religious views of the Reverend Jerry Falwell. Similarly, in TMI Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004), and Lucas Nursery & Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004), the courts found that the defendants did not have a bad faith intent to profit and focused on the fact that the defendants were using their websites to engage in consumer commentary and criticism rather than for commercial gain. On the other hand, in Coca-Cola Co. v. Purdy, 3821 F.3d 774 (8th Cir. 2004), the court held that an anti-abortion activist violated the ACPA, despite the plainly religious and political character of his speech, because his websites solicited monetary contributions and sold merchandise. Note too that the activist registered domain names like "drinkcoke.org" and "mymcdonalds.com," which had no relation to his anti-abortion message.

      Do not register multiple domain names or offer to sell a domain name to the trademark owner. Courts are aware that Congress passed the ACPA to fight the practice of cybersquatters registering multiple domain names in an effort to sell them to the legitimate owners of the trademarks. If you register more than one domain name, your activities look more like the harm that Congress meant to prevent. If you offer to sell the domain name in question, even after a trademark owner has threatened you with a lawsuit, it may look like your real purpose for registering the domain name was to extort money, not to engage in legitimate criticism, commentary, or reporting. Along these same lines, be sure never to give false contact information to the domain registrar when registering a domain name. When a court sees a website operator exercising his or her free speech rights and not engaging in these types of abusive behavior, it will likely conclude that no bad faith intent to profit is present. See for example Lamparello, Lucas Nursery, and Maxwell, and compare with the result in Purdy, where the defendant registered multiple domain names and offered to turn over one domain name in return for space on the editorial page of a trademark owner's newspaper.

      Make it clear that you are not affiliated with the trademark owner. Courts also consider whether the defendant intentionally confuses Internet users as to the affiliation of the website. If you include a prominent disclaimer and a link to the trademark owner's official website, this may help show that you have no bad faith intent to profit. This is especially important if you are trying to make your site a parody of the trademark owner's site. In addition, you may have better luck on all types of trademark claims if you include something in the domain name itself that makes it clear that you are criticizing or commenting on the trademark owner, such as a "sucks" designation.

      If you would like additional details about the ACPA and what constitutes a bad faith intent to profit, consult the Chilling Effects FAQ about ACPA.

      Uniform Domain Name Dispute Resolution Policy

      Besides bringing a lawsuit in federal court, a trademark owner who believes that someone else is violating his or her trademark rights through cybersquatting can use the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP is an online dispute resolution mechanism administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Under the UDRP, ICANN can cancel an improperly registered domain name or order a losing party to transfer the domain name to the winning party. The purpose of UDRP is to provide a cheaper and more efficient mechanism for resolving cybersquatting disputes. If you believe that someone is cybersquatting on a domain name that rightfully should be yours, bringing an action under the UDRP may be a cheap and easy alternative to a lawsuit. Note, however, that a losing party in a UDRP proceeding may sue in federal court to reverse the outcome. Importantly, if a court determines that the person initiating a UDRP proceeding knowingly misrepresented that the challenged domain name was "identical to, confusingly similar to, or dilutive of [his or her] mark," then it may award the other party damages and attorneys' fees. See 15 U.S.C. § 1114(2)(D)(iv).

      For more details on the UDRP, see the Chilling Effects FAQ about UDRP.

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      Trademark: User-Generated Content

      If you host user-generated content, such as user comments, you should be aware of your potential liability for that content under trademark law. For instance, a website user could post another blog's logo in a comment, eliciting a cease-and-desist letter from the competing blogger. While you would have a good argument that inclusion of a logo in a single comment does not create a likelihood of confusion between your two sites, you might consider whether you are responsible at all for material posted by a user. Unfortunately, while the so-called "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA) and section 230 of the Communications Decency Act protect you from liability for user-generated content in a number of situations, they do not protect you against trademark claims, with one possible exception discussed below. The same point holds for third-party content you host on your site through news feeds or other aggregation mechanisms.

      DMCA Safe Habors

      Section 512 of the DMCA, 17 U.S.C. § 512, contains the DMCA's "safe-harbor" provisions for online service providers. These safe harbor provisions may shield you from liability for the copyright infringements of your site's users and for linking to copyright infringing material from other online sources, so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no actual or effective knowledge that the material in question is infringing. For details, please see Protecting Yourself Against Copyright Claims Based On User Content.

      The DMCA safe harbor provisions only apply to claims of copyright infringement. Therefore, they do not provide any protection against trademark claims, whether for trademark infringement, trademark dilution, or cybersquatting. There may be times when you receive a DMCA takedown notice for material that is technically not eligible for safe-harbor treatment, like an allegedly infringing use of a trademark. If it satisfies the complaining person that you take the material down, and you have no serious objection, you might want to do so.

      For information on the difference between copyright and trademark, see the Chilling Effects FAQ on Trademark.

      Section 230 of the Communications Decency Act

      Section 230 of the Communications Decency Act (CDA 230) protects website owners from many claims based on user comments and other third-party content, but it does not apply to "intellectual property" claims. 47 U.S.C. § 230(e)(2). Courts consider federal trademark claims to be "intellectual property" claims, so CDA 230 will not stop a federal trademark lawsuit based on user-generated or other third-party content.

      A closer question is whether trademark claims under state law are "intellectual property" claims. One court has held that only federal intellectual property claims are outside the protection of CDA 230. See Perfect 10 v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007). Under this view, CDA 230 gives you a defense against state trademark claims based on user-generated content. More recently, another court held that CDA 230 does not bar state intellectual property claims. See Doe v. Friendfinder Network, Inc., 2008 WL 803947 (D.N.H. Mar. 27, 2008). Under this view, CDA 230 does not give you a defense against state trademark claims based on user-generated content.

      For details on CDA 230, please see our Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act.

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      Trade Secrets

      A trade secret is a form of intellectual property that applies to business secrets. If a company or other organization creates or compiles information that gives it an economic advantage over its competitors, it can protect that information as a trade secret -- in a sense becoming the "owner" of the trade secret. To do so, however, a business must take reasonable precautions to keep the information secret, and it loses its property right when competitors or the public at large uncover the secret. Trade secrets law is governed by state law. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. For state-specific information, please see the State Law: Trade Secrets section of this guide.

      The main goal of trade secrets law is to provide a way for businesses to capitalize on their unique practices or knowledge created through their time and effort. Unlike copyright, trade secrets law protects ideas and facts, rather than just the form in which they are expressed. A trade secret can be any kind of information relating to a business -- formulas, plans, designs, patterns, supplier lists, customer lists, financial data, personnel information, physical devices, processes, computer software, and a catch-all category of "know-how." The most "well known" trade secret is the "secret formula" for Coca-Cola, which has been kept under wraps for more than 100 years.

      By definition, trade secrets are not disclosed to the public. In this way, they are different from inventions and creative works that are copyrighted or patented. And, in contrast to copyrighted or patented information, trade secrets are not time-limited -- they last as long as the company manages to keep them secret. The company that creates them has the sole ability to exploit the secret as long as it manages to keep it from becoming public knowledge. The catch is that trade secrets can disappear without warning or any specific period of time passing. Once disclosed, they're gone. In addition, trade secrets law provides no protection against someone independently developing the owner's trade secret information or reverse engineering it from a finished product.

      For the most part, trade secrets law is directed against industrial espionage and ex-employees sharing their former employers' proprietary information with new employers. You might justifiably ask, then, what all this has to do with citizen media and online publishing? Trade secrets law prohibits publishing someone else's trade secrets under certain circumstances, and businesses and other organizations sometimes look to trade secrets law as a way of stopping the traditional and non-traditional media from publishing valuable, sensitive, or damaging information. Many readers may recall Apple's dispute with Think Secret, AppleInsider, and O'Grady's PowerPage over leaks of confidential information about unreleased Apple products before MacWorld 2005. Apple turned to trade secrets law to make out its case. Ultimately, the courts never decided the merits of Apple's trade secrets claims because Think Secret settled and ceased operations, and Apple voluntarily withdrew its lawsuit against the other sites after a California court upheld the website operators' right to protect the identity of their sources under the California shield law. For additional details on the lawsuits, see our database entries, Apple v. DePlume and Apple v. Does. Going back to 1999, Ford sued a website operator named Robert Lane for posting its confidential documents and photographs on his site. Current and former Ford employees had provided Lane with secret materials in violation of their confidentiality agreements with the auto giant. The court found that Lane had likely violated the Michigan Trade Secrets Act, but held that the First Amendment to the U.S. Constitution did not permit the court to order Lane to remove the photographs and documents from the Internet. See Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), for details.

      If, like many people, your online activities are limited to synthesizing and commenting on materials you find online, then trade secrets law will not have any real impact on you. For a business to protect information under trade secrets law, the information must be secret. If you can find a piece of information by searching the Internet, then in all likelihood so can the company's competitors, and that information is not a trade secret. If, on the other hand, you engage in investigative reporting or regularly rely on confidential sources, you should familiarize yourself with trade secrets law in order to avoid potential liability and to stand up for yourself should someone send you a cease-and-desist letter. There are two scenarios where trade secrets problems are likely to come up; in legal terminology, this is when a court could find that you have "misappropriated" a trade secret.

      Scenario One: You personally acquire a trade secret by improper means, such as theft, trespass, hacking, or breach of your own employment contract, even if you do not publish the trade secret. This type of conduct is outside the scope of this guide. If you are accused of engaging in such activities, we suggest that you seek immediate legal assistance. See the section on Finding Legal Help for some suggestions.

      Scenario Two: You publish secret information received from a source and you know that the source acquired it through theft, hacking, or some other improper means, or breached a duty of confidentiality by giving it to you. This later situation could easily come up if you rely on employee sources for information about a company. If you want to rely on insider sources or are simply curious about what qualifies as a trade secret and what activities may cause trade secret liability, please see Basics of a Trade Secret Claim.

      If you are considering publishing information that might be considered a trade secret, don't be intimidated.  Not every company document is a trade secret, and a business ordinarily cannot stop you from publishing embarrassing -- but not secret or economically valuable -- information. Even if you publish a bona fide trade secret, the First Amendment of the U.S. Constitution may protect you from having to take it down and even from paying damages, especially if you publish the trade secret in order to report or comment on a matter of public concern. To illustrate both points, imagine that a source inside the XYZ Tire Company provides you with a secret company memorandum revealing a hazardous defect in the company's tires; you may have a host of legal arguments why publishing that information is lawful, including that the information in the memorandum is not a trade secret and that the First Amendment protects your activity. Keep in mind, however, that the law is not clear in this area. If you are interested in the legal protections the law may offer your publishing activities, consult the Publishing Trade Secrets section.

      In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatment of trade secrets law, but it does provide what we hope is a good understanding of the legal risks surrounding trade secrets.

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      Basics of a Trade Secret Claim

      If you obtain or publish a company's trade secrets, the company may have a legal claim against you for trade secret misappropriation. Generally speaking, a "trade secret" is secret information that confers a competitive business advantage on its owner by virtue of not being known to its competitors. The trade secret owner must exert reasonable efforts to maintain the secrecy of this information, or it ceases to be a trade secret. When a person obtains a trade secret improperly (such as by theft, bribery, or breach of a confidentiality agreement) or publishes it, knowing that someone else acquired it improperly, he or she has "misappropriated" the trade secret. This is the legal wrong against which trade secrets law protects. Possible defenses against a misappropriation claim are discussed in the Publishing Trade Secrets section.

      State law governs trade secrets. Most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. The discussion below is based on the UTSA. For state-specific information, please see the state pages.

      Trade Secrets Law Protects "Trade Secrets"

      Under the UTSA, a trade secret has three basic characteristics:

      • It is secret
      • It confers a competitive advantage on its owner
      • It is subject to reasonable efforts to maintain its secrecy

      Trade secrets can take many forms. They can be formulas, plans, designs, patterns, supplier lists, customer lists, financial data, personnel information, physical devices, processes, computer software, and a catch-all category of "know-how" -- just about any kind of secret information that relates to a business. Even a compilation of generally known facts can be a trade secret, if the compilation confers a competitive edge to whomever has access to it and is kept secret. The Chilling Effects FAQ on Trade Secrets has additional information on what companies can protect as a trade secret. Below we discuss the three elements of a trade secret, listed above.

      (1) The information is secret

      For information to be "secret," it must not be generally known by or readily ascertainable to competitors. A trade secret loses its "secret" status if a competitor of the owner knows about it; the public at large need not know about it for it to cease being secret. Take for example the formula for Coca-Cola -- right now, virtually no one knows what it is, so it is secret. If one of the Coca-Cola Company's competitors somehow obtained the formula, the formula would lose its "secret" status under the law, even if the competitor did not disclose it to the public at large. On the other hand, if an individual or small group of individuals gained knowledge of the formula, but the Coca-Cola Company stopped them from communicating it to the company's competitors, the formula would not lose its "secret" status.

      As we discuss more fully in Publishing Trade Secrets, if a company's information is widely available on the Internet, it probably isn't "secret" because the entire public, including competitors, has access to it.

      (2) The information confers a competitive advantage

      The information must also give its owner an economic advantage over its competitors. To determine this, courts look at a number of factors: (a) the value the information has to the owner and its competitors; (b) how much effort or money the owner put into developing the information; (c) how seriously the owner tried to keep the information secret; (d) how hard it would be for others to properly acquire or duplicate the information; and (e) the degree to which other people have placed this information in the public domain or made the information readily ascertainable by applying for a patent or marketing.

      To use Coke as an example again, the factors point towards the conclusion that the formula confers a competitive advantage. Most importantly, the industry perceives Coke's formula as so valuable that several people tried to sell it to PepsiCo for $1.5 million in 2006. In addition, the Coca-Cola Company makes serious efforts to keep the information secret -- keeping the original formula in a bank vault and supposedly letting only two executives know the formula at the same time. It is not clear how easy it would be for others to acquire this information -- many people claim to have reverse engineered it, but it has never been proven. The information plainly is not in the public domain.

      (3) The information is subject to reasonable efforts to keep it secret

      Finally, the owner of a trade secret must make reasonable efforts to keep the information secret. What is reasonable is determined by a cost-benefit analysis that varies from case to case. For example, in Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174 (7th Cir. 1991), the court considered a trade secrets claim by a printing press manufacturer which alleged that a competitor had misappropriated drawings of machine parts. The company had given the part drawings to a limited number of vendors and their own engineers. The court explained that it would not be reasonable to require the manufacturer to forbid any copying of the drawings, forcing all of the vendors and engineers to share a single copy, noting that "perfect security is not optimum security."

      To use the Coke example one last time, the company certainly takes reasonable efforts to keep the formula secret. As noted above, it keeps the formula locked in a vault, and only a few executives know it. Such extreme measures won't be necessary or practical for many businesses, and courts will take a case-by-case look at the reasonableness of the measures taken.

      Trade Secrets Law Prohibits "Misappropriation" of Trade Secrets

      The legal wrong that trade secrets law protects against is "misappropriation" of a trade secret. Section 1(2) of the UTSA provides the following definition for the term:

      "Misappropriation " means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake.

      While this definition looks technical and complicated, citizen media creators and other online publishers will want to focus on two relatively straightforward points:

      First, you commit misappropriation if you personally acquire a trade secret by improper means. "Improper means" include theft, fraud, bribery, industrial espionage, breaching a contractual duty to keep something confidential, or inducing others to breach that duty. For example, if you take home confidential information from your job in violation of your employment contract, that alone could be misappropriation. For another example, if you hack into a company's computer and make copies of confidential files you find there, that likely would qualify as misappropriation. To be clear, if you acquire the information yourself, you do not have to disclose or publish it in order to be liable for misappropriation. The act of acquisition is enough. That said, publishing or sharing information that you acquire improperly would also be misappropriation.

      Second, you commit misappropriation if you publish a trade secret and you know that the person who gave you the information acquired it through improper means or under circumstances giving rise to a duty to maintain its secrecy or limit its use. Even if you don't actually know that the person who gave you the information acquired it in this way, you may be liable if you are aware of facts that suggest that this person acquired the information improperly. For example, if documents are stamped "Confidential," or "Secret," this might be enough give you reason to believe that your source acquired them improperly. This type of misappropriation would cover situations where you receive secret documents or information from a source inside the company about which you want to publish. For instance, if your source has signed a confidentiality agreement with his or her employer, then simply giving you secret information would breach that agreement, and your publishing of the information would be misappropriation if you knew or had reason to know that your source was bound by such an agreement. Alternatively, if your source stole secret information or hacked into a company computer to get it, your publishing of the information would be misappropriation if you knew or had reason to know that he or she had done so.

      One case has squarely addressed this kind of misappropriation in the citizen media context. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), a blogger obtained confidential documents and photographs from current and former Ford employees. The court determined that the blogger had violate the Michigan Trade Secrets Act by publishing the documents and photographs because he had reason to know the employees who gave him the information had breached their duty to Ford not to reveal the information. As discussed in Publishing Trade Secrets, however, the court also held that the First Amendment did not permit it to order the blogger to stop publishing these materials.

      Note that trade secrets laws in many states, such as California, state explicitly that reverse engineering is not an "improper means" of obtaining information and cannot be the basis for a misappropriation claim. In those states, if you or your source uses reverse engineering to obtain information that a company claims is a trade secret, you generally cannot be liable for misappropriation. However, you might still run into trouble if you or your source agreed not to engage in reverse engineering in a contract, such as an end-user licensing agreement.

      Remedies

      If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: Section 2 of the UTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. Most pertinently, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. In lieu of those damages, a court can also order a losing defendant to pay a royalty to the trade secret owner. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages.
      • Attorneys' Fees: A court may order the defendant to pay the plaintiff's attorneys' fees if it finds that the defendant acted willfully or maliciously in violating the plaintiff's trade secret rights. On the other hand, if the defendant wins the lawsuit, the court may order the plaintiff to pay the defendant's attorneys' fees if it finds that the plaintiff acted in bad faith in filing the lawsuit.

      Statute of Limitations

      The "statute of limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over took place. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Section 6 of the UTSA sets the statute of limitations for trade secrets claims at three years. However, many states have amended this section of the UTSA, so the statute of limitations for trade secrets claims varies between three and five years depending on the state. See the state pages for the applicable term in your state.

      Generally speaking, the limitations period for a trade secret claims runs from the time the plaintiff discovered the misappropriation or the time by which the plaintiff should have discovered it through the exercise of reasonable diligence.

      Jurisdiction: 

      Subject Area: 

      Publishing Trade Secrets

      If you are thinking about publishing something that looks like a company's internal -- and possibly secret -- document or information, you need to think about the potential legal consequences under trade secrets law. As explained in Basics of a Trade Secret Claim, if a document or piece of information turns out to be a trade secret, then you might be liable for damages, and a court might order you to take down the material. But not every company document is a trade secret, and a company ordinarily cannot stop you from publishing embarrassing -- but not secret or economically valuable -- information. And even if you publish a bona fide trade secret, the First Amendment of the United States Constitution may protect you from having to take it down and even from paying damages, especially if you publish the trade secret in order to report or comment on a matter of public concern. Thus, if you get your hands on a secret document that shows that a steel plant is spewing pollutants into a local river, the U.S. Constitution may protect your decision to publish this document even if you are aware that your source acquired it through improper means (e.g., theft or breach of a confidentiality agreement). As described in more detail below, however, the law is not entirely clear on these points, and you ultimately will have to make a decision about what to do based on your own willingness to take risks.

      The sections below speak in terms of "defenses" -- i.e., what you could argue to protect yourself assuming someone sued you for publishing a trade secret. The focus on defenses should not confuse you into thinking that this information is not valuable before a lawsuit happens. Knowing how you might defend yourself can help you evaluate whether your publishing activity is legally protected or whether you face a serious risk of unwanted legal consequences.

      Defenses Based on the Legal Definition of
      a "Trade Secret" and "Misappropriation"

      These defenses relate to the legal definition of a "trade secret" and the act of "misappropriation." For background, see Basics of a Trade Secret Claim.

      What You Published Was Not a Trade Secret

      (1) Not Secret

      Your surest defense to a trade secrets claim is to show that the information you published was not a secret when you published it because it was already "generally known." For example, you generally cannot be liable for trade secret misappropriation if you get the information in question from some published source, like a newspaper or book. Similarly, most material previously posted on the Internet is no longer secret. For example, in DVD Copy Control Association v. Bunner, 10 Cal. Rptr. 3d 185 (Ct. App. 2004), a trade association claimed that a website operator had misappropriated its trade secret when he posted DeCSS -- a code for breaking its DVD encryption technology -- on his website. A California appellate court held that DeCSS was not a trade secret when the defendant posted it because hundreds of other websites had already done so. Similarly, several federal district courts have found that numerous Church of Scientology documents were not trade secrets because many websites published the documents before the defendant. See, e.g, Religious Tech. Ctr. v. Netcomm On-Line Commc'n Servs., 923 F. Supp. 1231, 1256-57 (N.D. Cal. 1995); Religious Tech. Ctr. v. Lerma, 897 F. Supp. 260, 266 (E.D. Va. 1995).

      Note, however, that publication on the Internet does not always strip information of its trade secret status. For example, information that appears only on an obscure site or sites, and information that appears and quickly gets taken down may remain a trade secret, and you might be liable for publishing it if you have reason to know that it was acquired through improper means.

      Even if information was secret when you first disclosed it online, if it becomes public knowledge by the time a plaintiff asks a court for an injunction against you (i.e., an order requiring you to take down the material and not publish it in the future), you may convince the court not to issue the order. The court may not issue an injunction without the plaintiff showing that it would be "irreparably harmed" absent the order requiring you not to publish the trade secret. But if the information is already publicly available, then you cannot harm the plaintiff by publishing what everyone already knows. Even if an injunction is improper, however, a plaintiff can still seek money damages from you.

      (2) Generates No Economic Value

      You may also avoid trade secret liability if the information you published could not give its owner an economic advantage over its competitors by remaining secret. You could use this defense if a company tries to use trade secrets law to shield embarrassing information that does not relate to its competitive position vis-a-vis its rivals. For example, in MicroStrategy Inc. v. Business Objects, S.A., 331 F. Supp. 2d 396 (E.D. Va. 2004), a court determined that an email sent by a company's CEO to all employees about the the company's financial difficulties was not a trade secret. The email, while interesting to some, had no potential economic value and was about to be made public in a press release anyway.

      In another case, Buffets, Inc. v. Klinke, 73 F.3d 965 (9th Cir. 1996), the owners of the Old Country Buffet restaurant chain claimed another chain had stolen their trade secrets when it copied their recipes, but the court determined the recipes had no economic value. The court reasoned that "there was no demonstrated relationship between the lack of success of [the] competitors and the unavailability of the recipes" and, because, in fact, OCB's cooks had used simplified versions of the recipes in preparing their food, so it was unlikely the recipes themselves had conferred a benefit on OCB.

      (3) No Reasonable Efforts to Maintain Secrecy

      One other way you can defend yourself is the owner of the "secret" did not take reasonable steps to maintain its secrecy. The exact steps required will vary depending on the secret involved, but there is a good chance that information is not a trade secret if a company has failed to take any affirmative steps to protect it. For example, in Hoffmann-La Roche Inc. v. Yoder, 950 F. Supp. 1348 (S.D. Ohio 1997), a federal district court found a company had failed to take sufficient to make a reasonable effort to ensure secrecy because it did not require its clinical investigators to sign confidentiality agreements, it failed to stamp documents "confidential" or "secret," it widely disseminated the information, and it did not use other controls like restricting access to the physical location of the secret, the use of safes, or discussing the importance of confidentiality with people who received the information. If you find documents or information online, you may have a decent argument that the owner did not maintain reasonable efforts to keep the material secret (in addition to the argument that the material is "not secret," as explained above).

      You Did Not Commit Misappropriation

      Another possible defense is that neither you nor your source(s) used improper means to obtain the information. The Supreme Court noted in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), that "discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering" is not misappropriation. Often, this argument would go hand and hand with the argument that the information in question was not secret. If the information is publicly available, then you generally do not need to rely on theft, deception, or breach of confidentiality in order to get a hold of it.

      For example, in Religious Technology Center v. Lerma, 908 F. Supp. 1362 (E.D. Va. 1995), the Washington Post published Scientology documents it had obtained from a publicly available court file and the Internet. The district court determined that the Post had not misappropriated the Church of Scientology's trade secrets because the paper obtained the materials from legitimate, publicly available sources. The court further noted that "[a]lthough the person who originally posted a trade secret on the Internet may be liable for trade secret misappropriation, the party who merely downloads Internet information cannot be liable for misappropriation because there is no misconduct involved in interacting with the Internet." Similarly in DVD Copy Control Association v. Bunner, 75 P.3d 1 (Cal. 2003), the California Supreme Court considered a case where a programmer had reverse engineered DVD encryption software. While the majority of the court did not consider the issue, Justice Moreno, concurring, expressed serious doubt that reverse engineering was an improper act. In their versions of the Uniform Trade Secrets Act, California, Illinois, and Oregon explicitly state that reverse engineering alone does not constitute misappropriation.

      Defense Against An Injunction Based on the First Amendment

      Even if you are dealing with a bona fide trade secret and you have reason to believe that your source acquired it improperly, the First Amendment of the U.S. Constitution may stop a court from ordering you not to publish it. You may be protected by something known as the "prior restraint" doctrine. The Supreme Court held in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), that a plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern. The United States government had sought an injunction to prevent the New York Times and Washington Post from publishing information from a classified study on the Vietnam War. Though the materials "pose[d] substantial dangers to national interests," the court was unwilling to stop the newspapers from printing them. As one district court found in Religious Technology Center v. Lerma, 897 F. Supp. 260 (E.D. Va. 1995), "If a threat to national security was insufficient to warrant a prior restraint ... the threat to plaintiff's ... trade secrets is woefully inadequate."

      Although the law is not entirely certain on this point, a number of courts have extended the prior restraint doctrine to trade secret cases. In CBS v. Davis, 510 U.S. 1315 (Blackmun, Circuit Justice 1994), after CBS News shot the operations of a meatpacking company on an undercover camera, the company sought and obtained an injunction preventing CBS from broadcasting the video footage, claiming that the broadcast would disclose the company's trade secrets. Acting pursuant to a special procedure, Justice Blackmun of the Supreme Court stayed the injunction, ruling that the possibility of economic harm was not a sufficient justification for a prior restraint. (Note that this case does not have great value as precedent because the full Supreme Court did not decide the case.)

      Courts have applied the prior restraint doctrine to Internet publishers as well as to the mainstream media. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), the auto company sought a court order preventing a blogger from posting the company's internal documents online. The documents were provided to the blogger by anonymous sources (which the court believed were likely former and current Ford employees). Because Lane had reason to know that his sources had given him Ford's trade secrets in violation of their confidentiality agreements, the federal district court determined that the blogger was likely violating the Michigan Trade Secrets Act. Nevertheless, the court held that the prior restraint doctrine prevented it from issuing an injunction requiring Lane to take the confidential information off his blog. Protecting the company's vanity and commercial self-interest was not a sufficient ground to stop the blogger from publishing, the court noted. Another federal district court came to a similar conclusion in Religious Technology Center v. F.A.C.T.NET, Inc., 901 F. Supp. 1519 (D. Colo. 1995)

      In contrast, other courts have upheld the use of an injunction to bar publication of a trade secret, at least in some situations. In DVD Copy Control Association v. Bunner, 75 P.3d 1 (Cal. 2003), the California Supreme Court found that an injunction prohibiting the posting of DeCSS was not an invalid prior restraint. However, the court expressly limited its reasoning to publication of secret information that is not a matter of public concern. Therefore, publication of trade secrets for news reporting or news commentary would not fall under the Bunner case. In Garth v. Staktek Corp., 876 S.W.2d 545 (Tex. App. 1994), a Texas appellate court upheld an injunction barring a company from selling a technology developed with misappropriated trade secrets and from revealing information about the technology to third parties.

      Despite the protection offered by the prior restraint doctrine, you should be aware of two caveats. First, the prior restraint doctrine may not help you in a situation where you have personally signed an agreement promising to keep materials confidential. In Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), the court noted that "use of trade secrets in violation of a confidentiality agreement or in breach of a fiduciary duty is not protected by the First Amendment." For example, if you agree in an employment contract not to disclose your employer's trade secrets and then post that information on your blog, the First Amendment may not protect you from an injunction. On the other hand, if you receive trade secrets from a source, the First Amendment may protect you, even if that source violated a confidentiality agreement or otherwise acted improperly. Second, the prior restraint doctrine only stops a court from ordering you not to publish information. It does not stop a court from holding you liable for civil damages or criminal penalties. As discussed immediately below, however, other First Amendment considerations may bar civil or criminal liability under certain circumstances.

      Defense Against Liability Based on the First Amendment

      Beyond protecting you against an injunction, the First Amendment may protect you from civil liability or criminal prosecution for publishing trade secrets. This potential protection stems from a case called Bartnicki v. Vopper, 532 U.S. 514 (2001). In that case, an unidentified person intercepted and recorded a phone call between Bartnicki, a union negotiator, and the the president of the union. Then, the head of a local taxpayer's group received the tape in his mailbox without any indication of where it came from. The head of the taxpayer's group gave the tape to Vopper, a radio commentator, and he played it on the air. Bartnicki sued Vopper for publishing the contents of an illegal recording in violation of federal wiretapping law, knowing or having reason to know that it was illegally recorded. See 18 U.S.C. § 2511(1)(c). Vopper argued his disclosure of the contents of the illegally recorded tape was protected by the First Amendment. Finding that "a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," the Supreme Court refused to enforce federal wiretapping law against Vopper.

      Although no court has yet applied Barnicki to block liability for publication of trade secrets, its reasoning could apply to a trade secret case where a publisher has reason to know that the information was acquired through improper means, but did not himself or herself engage in any misconduct or breach any agreement in order to get the information. The argument goes: Bartnicki protects you from liability when you publish trade secrets relevant to a matter of public concern, when you did not personally steal or breach a duty of confidentiality in order to obtain the information, but rather received it from a source who breached a duty of confidentiality or otherwise acted improperly.

      Whether a court would actually accept this argument is far from certain. In Bartnicki, the Court explicitly noted it was not deciding whether the First Amendment would bar liability in a case involving trade secrets, on the assumption that trade secrets would be a matter of purely private concern. If you could show that a trade secret related to a matter of public concern, which it might well if you published it in the process of news reporting, commentary, or criticism, then the general reasoning of Bartnicki might apply to prohibit liability. For example, if you blog about secret documents that show a problem with a car company's emissions standards, then Bartnicki might protect you from liability if you did not yourself engage in improper conduct to get the documents.

      Only one court so far has ruled on the application of Bartnicki to trade secrets: the California Supreme Court, in DVD Copy Control Association v. Bunner. While the court found that the trade secrets in issue in Bunner were not protected by the First Amendment, its ruling was based on its belief that those trade secrets, since they were only technical information, did not "involve[] a matter of public concern [or] implicate[] the core purpose of the First Amendment." So even in California, if you published trade secrets more directly involving a matter of public importance, you would still have a strong argument that your speech should be protected. For example, if you published secret information showing that a company's voting machines were not working properly, you could argue that the Bunner case should not apply.

      Trade Secrets and User-Generated Content

      You might be concerned that a user of your website or blog could post trade secrets there without your knowledge or understanding of the character of the information. Section 230 of the Communications Decency Act (CDA 230) protects website owners from many claims based on user comments and other third-party content, but it does not apply to "intellectual property" claims. 47 U.S.C. § 230(e)(2). While the law is not settled yet, the term "intellectual property" may include state trade secrets claims. Thus, if a user posts trade secrets on your website or blog, the owner of those trade secrets may be able to sue you for your user's conduct.

      For details on CDA 230, please see our Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act.

      Jurisdiction: 

      Subject Area: 

      State Law: Trade Secrets

      Each state has its own law relating to trade secrets. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. Choose your state from the list below for state-specific information on trade secrets law.

      Jurisdiction: 

      Subject Area: 

      Trade Secrets Law in Arizona

      Note: This page covers information specific to Arizona. See the Trade Secrets overview for more general information.

      The Arizona Uniform Trade Secrets Act ("AUTSA") is located at chapter 4 of title 44 of the Arizona Revised Statutes. AUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, AUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      A.R.S. § 44-401 defines the key terms of AUTSA:

      Trade secret means information, including a formula, pattern, compilation, program, device, method, technique, or process, that both:

      (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
      (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      Only those secrets affording a demonstrable competitive advantage may be considered trade secrets, and value will be inferred if the owner can show that the information confers upon it an economic advantage over others in the industry.  Enterprise Leasing Co. of Phoenix v. Ehmke, 3 P.3d 1064, 1069-70 (Ariz. Ct. App. 1999). The Arizona Court of Appeals has recognized as trade secrets both: a compilation of customer-service factors in managing a car-rental business; and financial records that the owner treated as secret, even if the information they contain is old or outdated. Id.

      The Arizona Court of Appeals has indicated that trade secrets contained in public records may be protected by the confidentiality exception to Arizona's public records laws.  Phoenix Newspapers, Inc. v. Keegan, 35 P.3d 105, 112 (Ariz. Ct. App. 2001).

      Misappropriation means either:

      (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (b) Disclosure or use of a trade secret of another without express or implied consent by a person who either:
      (i) Used improper means to acquire knowledge of the trade secret;
      (ii) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      Improper means includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means.  The Arizona Court of Appeals has ruled that use of secret documents legitimately obtained during employment after that employment has ended can constitute improper means. Ehmke, 3 P.3d at 1071.

      Note that the First Amendment may protect you from civil liability or criminal prosecution for publishing trade secrets, provided you were not engaged in the improper conduct that led to the secrets' misappropriation. This potential protection stems from a case called Bartnicki v. Vopper, 532 U.S. 514 (2001). See Publishing Trade Secrets for more information about this case.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: AUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See A.R.S. § 44-402. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See A.R.S. § 44-403.
      • Attorney's Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys’ fees if it finds that a motion to terminate an injunction is made or resisted in bad faith. See A.R.S. § 44-404.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Arizona is three years. See A.R.S. § 44-406.

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      Subject Area: 

      Trade Secrets Law in California

      Note: This page covers information specific to California. See the Trade Secrets overview for more general information.

      The California Uniform Trade Secrets Act ("CUTSA") is located at sections 3426 to 3426.11 of the California Civil Code. CUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, CUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, California law may impose criminal penalties for stealing trade secrets. See Cal. Penal Code §§ 499c, 502.

      Definitions

      Cal. Civ. Code 3426.1 defines the key terms of CUTSA:

      (a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.

      (b) "Misappropriation" means:

      (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (2) Disclosure or use of a trade secret of another without express or implied consent by a person who:
      (A) Used improper means to acquire knowledge of the trade secret; or
      (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
      (i) Derived from or through a person who had utilized improper means to acquire it;
      (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

      (d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

      (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
      (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: CUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. Cal. Civ. Code § 3426.2 (scroll down). Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. Cal. Civ. Code § 3426.3 (scroll down).
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. Cal Civ. Code § 3426.4 (scroll down).

      Statute of Limitations

      The statute of limitations for a trade secret claim in California is three years. Cal. Civ. Code § 3426.6 (scroll down).

       

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      Trade Secrets Law in Florida

      Note: This page covers information specific to Florida. See the Trade Secrets overview for more general information.

      The Florida Uniform Trade Secrets Act ("FUTSA") is located in chapter 688 of title XXXIX of the 2007 Florida Statutes. FUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, FUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, Florida law may impose criminal penalties for stealing trade secrets. See Fla. Stat. § 812.081.

      Definitions

      Fla. Stat. § 688.002 defines the key terms of FUTSA:

      (1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

      (2) "Misappropriation" means:

      (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (b) Disclosure or use of a trade secret of another without express or implied consent by a person who:
      1. Used improper means to acquire knowledge of the trade secret; or
      2. At the time of disclosure or use, knew or had reason to know that her or his knowledge of the trade secret was:
      a. Derived from or through a person who had utilized improper means to acquire it;
      b. Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      c. Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      3. Before a material change of her or his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

      (4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process that:

      (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
      (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: FUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Fla. Stat. § 688.003. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Fla. Stat. § 688.004.
      • Attorney's Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See Fla. Stat. § 688.005.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Florida is three years. See Fla. Stat. § 688.007.

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      Trade Secrets Law in Georgia

      Note: This page covers information specific to Georgia. See the Trade Secrets overview for more general information.

      The Georgia Trade Secrets Act of 1990 ("GUTSA") is located at title 10, chapter 1, article 27 of the Georgia Code. GUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, GUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, Florida law may impose criminal penalties for stealing trade secrets. See [Ga. Code § 16-8-13] (link is to entire code; you need to click through to title 16, chapter, 8, article 1, and then choose the specific provision).

      Definitions

      Ga. Code § 10-1-761 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision) defines the key terms of GUTSA:

      (1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering of a trade secret not acquired by misappropriation or independent development shall not be considered improper means.

      (2) "Misappropriation" means:

      (A) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (B) Disclosure or use of a trade secret of another without express or implied consent by a person who:
      (i) Used improper means to acquire knowledge of a trade secret;
      (ii) At the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was:
      (I) Derived from or through a person who had utilized improper means to acquire it;
      (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (iii) Before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for profit or not for profit legal or commercial entity.

      (4) "Trade secret" means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:

      (A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
      (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: GUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Ga. Code § 10-1-762 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision). Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Ga. Code § 10-1-763 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision).
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See Ga. Code § 10-1-764 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision).

      Statute of Limitations

      The statute of limitations for a trade secret claim in Georgia is five years. See Ga. Code § 10-1-766 (link is to entire code; you need to click through to title 10, chapter, 1, article 27, and then choose the specific provision).

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      Trade Secrets Law in Illinois

      Note: This page covers information specific to Illinois. See the Trade Secrets overview for more general information.

      The Illinois Trade Secrets Act ("ITSA") is located at chapter 765 of the Illinois Compiled Statutes. ITSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, ITSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      765 Ill. Comp. Stat. 1065/2 (scroll down) defines the key terms of ITSA:

      (a) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means. Reverse engineering or independent development shall not be considered improper means.

      (b) "Misappropriation" means:

      (1) acquisition of a trade secret of a person by another person who knows or has reason to know that the trade secret was acquired by improper means; or
      (2) disclosure or use of a trade secret of a person without express or implied consent by another person who:
      (A) used improper means to acquire knowledge of the trade secret; or
      (B) at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was:
      (I) derived from or through a person who utilized improper means to acquire it;
      (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (C) before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (c) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other for‑profit or not‑for‑profit legal entity.

      (d) "Trade secret" means information, including but not limited to, technical or non‑technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:

      (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
      (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: ITSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See 765 Ill. Comp. Stat. 1065/3 (scroll down). Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See 765 Ill. Comp. Stat. 1065/4 (scroll down).
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See 765 Ill. Comp. Stat. 1065/5 (scroll down).

      Statute of Limitations

      The statute of limitations for a trade secret claim in Illinois is five years. See 765 Ill. Comp. Stat. 1065/7 (scroll down).

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      Subject Area: 

      Trade Secrets Law in Indiana

      Note: This page covers information specific to Indiana. See the Trade Secrets overview for more general information.

      The Indiana Uniform Trade Secrets Act ("IUTSA") is located at title 24, article 2, chapter 3 of the Indiana Code. IUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, IUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      Ind. Code § 24-2-3-2 (scroll down) defines the key terms of IUTSA:

      "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

      "Misappropriation" means:

      (1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (2) disclosure or use of a trade secret of another without express or implied consent by a person who:
      (A) used improper means to acquire knowledge of the trade secret;
      (B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
      (i) derived from or through a person who had utilized improper means to acquire it;
      (ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      (iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      "Person" means a natural person, limited liability company, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

      "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

      (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
      (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: IUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Ind. Code § 24-2-3-3 (scroll down). Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Ind. Code § 24-2-3-4 (scroll down).
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See Ind. Code § 24-2-3-5 (scroll down).

      Statute of Limitations

      The statute of limitations for a trade secret claim in Indiana is three years. Ind. Code § 24-2-3- (scroll down).

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      Trade Secrets Law in Massachusetts

      Note: This page covers information specific to Massachusetts. See the Trade Secrets overview for more general information.

      Massachusetts has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. Like the UTSA, however, Massachusetts law creates civil liability for acquisition of trade secrets through improper means. In addition, Massachusetts is one of the few states that imposes criminal liability for improper acquisition of trade secrets - unlawfully taking a trade secret is included in the definition of the crime of larceny and can result in imprisonment.

      Definitions

      Massachusetts law defines a trade secret as "anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement." Mass. Gen. Laws. ch. 266, § 30. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.

      Unlike the Uniform Trade Secret Act, Massachusetts law does not use the word "misappropriation." Instead, it lists a number of activities that trigger civil liability:

      • embezzling a trade secret;
      • stealing or unlawfully taking a trade secret;
      • carrying away, concealing, or copying a trade secret; and
      • obtaining a trade secret by fraud or deception;

      Mass. Gen. Laws ch. 93, § 42. It is not clear whether Massachusetts law prohibits publishing a trade secret while knowing that it was acquired by a source through improper means. Undoubtedly, you could be liable for publishing a trade secret if you personally obtained it through any of the improper means listed above.

      The Massachusetts criminal statute relating to trade secrets prohibits the following activities:

      • stealing a trade secret;
      • obtaining a trade secret through false pretenses with an intent to defraud someone; and
      • converting, concealing, unlawfully taking, carrying away, or copying a trade secret with an intent to steal or embezzle.

      Mass. Gen. Laws. ch. 266, § 30. It does not look like the law makes it a crime to publish a trade secret, so long as you do not personally obtain it through any of the improper means listed above.

      Remedies

      If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies:

      • Criminal Penalties: Unlawfully taking a trade secret (defined above) constitutes the crime of larceny in Massachusetts and is punishable by up to five years imprisonment, or by a fine of up to $25,000 and up to two years imprisonment. See Mass. Gen. Laws ch. 266, § 30.
      • Damages: A court can make a defendant pay money damages to the plaintiff in an amount up to twice its actual damages. See Mass. Gen. Laws ch. 93, § 42
      • Injunctive Relief: Massachusetts law gives a court the power to restrain the defendant from "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using or disposing of a trade secret, regardless of value." See Mass. Gen. Laws ch. 93, § 42A. It appears that a court could order you not to publish a trade secret if it found that you had unlawfully taken it from the plaintiff. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. For details, see Publishing Trade Secrets.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Massachusetts is three years. See Mass. Gen. Laws ch. 260, § 2A .

      Jurisdiction: 

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      Trade Secrets Law in Michigan

      Note: This page covers information specific to Michigan. See the Trade Secrets overview for more general information.

      The Michigan Uniform Trade Secrets Act ("MUTSA") is located in chapter 445 of the Michigan Compiled Laws. MUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, MUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      Mich. Comp. Laws § 445.1902 defines the key terms of MUTSA:

      (a) “Improper means” includes theft, bribery, misrepresentation, breach, or inducement of a breach of a duty to maintain secrecy or espionage through electronic or any other means.

      (b) “Misappropriation” means either of the following:

      (i) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means.
      (ii) Disclosure or use of a trade secret of another without express or implied consent by a person who did 1 or more of the following:
      (A) Used improper means to acquire knowledge of the trade secret.
      (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it, acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or derived from or through a person who owed a duty to the person to maintain its secrecy or limit its use.
      (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (c) “Person” means an individual, corporation, partnership, association, governmental entity, or any other legal entity.

      (d) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that is both of the following:

      (i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
      (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunction: MUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Mich. Comp. Laws § 445.1903. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. In lieu of those damages, a court can also order a losing defendant to pay a royalty to the trade secret owner. See Mich. Comp. Laws § 445.1904.
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See Mich. Comp. Laws § 445.1905.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Michigan is three years. See Mich. Comp. Laws § 445.1907.

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      Trade Secrets Law in New Jersey

      Note: This page covers information specific to New Jersey. See the Trade Secrets overview for more general information.


      New Jersey has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. In fact, New Jersey does not have a statute governing trade secrets law. Instead, it is based solely on the common law, which is the compilation of prior court decisions in the state. Like the UTSA, however, New Jersey law creates civil liability for "misappropriation" of someone else's trade secret(s). New Jersey's criminal laws relating to theft may also impose criminal liability for stealing trade secrets.

      Definitions

      New Jersey courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts: "A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." The Restatement of Torts explains further that a trade secret differs from other secret information in a business in that it is not simply information about single or ephemeral events, but rather a process or device for continuous use in the operation of the business. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.

      The general meaning of "misappropriation" under New Jersey law is not entirely clear because many of the cases focus on situations where former employees passed secrets to a competitor, but it looks like misappropriation can happen in two ways, discussed in detail in the Basics of a Trade Secret Claim. First, you commit misappropriation if you personally acquire a trade secret by improper means. "Improper means" includes criminal acts, such as theft, fraud, breaking and entering, trespass, and bribing and swindling, as well as acts taken to overcome measures put in place to maintain secrecy of the trade secret information, such as fraud, interference with contractual obligations, and breach of a contract in obtaining or using the trade secret. Reverse engineering and independent development are not "improper means." Second, you commit misappropriation if you publish a trade secret while knowing that the person who gave you the information acquired it through improper means or under circumstances giving rise to a duty to maintain its secrecy or limit its use.

      Remedies

      If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following penalties and remedies:

      • Injunctive Relief: A court may order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. Punitive damages and attorneys' fees may be available in exceptional circumstances.

      Statute of Limitations

      The statute of limitations for a trade secret claim in New Jersey is six years.


      Jurisdiction: 

      Subject Area: 

      Trade Secrets Law in New York

      Note: This page covers information specific to New York. See the Trade Secrets overview for more general information.

      New York has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. In fact, New York does not have a statute governing trade secrets law. Instead, it is based solely on the common law, which is the compilation of prior court decisions in the state. Like the UTSA, however, New York law creates civil liability for "misappropriation" of someone else's trade secret(s). New York's criminal larceny statute may also impose criminal liability for stealing trade secrets.

      Definitions

      New York courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts: "A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." The Restatement of Torts explains further that a trade secret differs from other secret information in a business in that it is not simply information about single or ephemeral events, but rather a process or device for continuous use in the operation of the business. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim. New York courts have adopted the definition of trade secret from Section 757 of the Restatement of Torts.

      Under New York law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement.

      Remedies

      If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following penalties and remedies:

      • Injunctive Relief: A court may order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. Punitive damages are available in exceptional circumstances.

      Statute of Limitations

      The statute of limitations for a trade secret claim in New York is three years.

      Jurisdiction: 

      Subject Area: 

      Trade Secrets Law in North Carolina

      Note: This page covers information specific to North Carolina. See the Trade Secrets overview for more general information.

      The North Carolina Trade Secrets Protection Act is located in chapter 66, article 24 of the North Carolina General Statutes. This Act is similar to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, The North Carolina Trade Secrets Protection Act prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      N.C. Gen. Stat. § 66-152 defines the key terms of the Act:

      (1)"Misappropriation" means acquisition, disclosure, or use of a trade secret of another without express or implied authority or consent, unless such trade secret was arrived at by independent development, reverse engineering, or was obtained from another person with a right to disclose the trade secret.

      (2)"Person" means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity.

      (3)"Trade secret" means business or technical information, including but not limited to a formula, pattern, program, device, compilation of information, method, technique, or process that:

      a. Derives independent actual or potential commercial value from not being generally known or readily ascertainable through independent development or reverse engineering by persons who can obtain economic value from its disclosure or use; and
      b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: The Act empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See N.C. Gen. Stat. § 66-154. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages. See N.C. Gen. Stat. § 66-154.
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. See N.C. Gen. Stat. § 66-154.

      Statute of Limitations

      The statute of limitations for a trade secret claim in North Carolina is three years. See N.C. Gen. Stat. § 66-157

       

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      Trade Secrets Law in Ohio

      Note: This page covers information specific to Ohio. See the Trade Secrets overview for more general information.

      The Ohio Uniform Trade Secrets Act ("OUTSA") is located at chapter 1333 of title 13 of the Ohio Revised Code. OUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, OUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      Ohio Rev. Code § 1333.61 defines the key terms of OUTSA:

      (A) “Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

      (B) “Misappropriation” means any of the following:

      (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;
      (2) Disclosure or use of a trade secret of another without the express or implied consent of the other person by a person who did any of the following:
      (a) Used improper means to acquire knowledge of the trade secret;
      (b) At the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret that the person acquired was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use;
      (c) Before a material change of their position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (C) “Person” has the same meaning as in division (C) of section 1.59 of the Revised Code and includes governmental entities.

      (D) “Trade secret” means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

      (1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
      (2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: OUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Ohio Rev. Code § 1333.62. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to three times the plaintiff's actual damages. See Ohio Rev. Code § 1333.63.
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorney's fees if a motion to terminate an injunction is made or resisted in bad faith. See Ohio Rev. Code § 1333.64.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Ohio is four years. See Ohio Rev. Code § 1333.66.

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      Trade Secrets Law in Pennsylvania

      Note: This page covers information specific to Pennsylvania. See the Trade Secrets overview for more general information.

      Enacted in 2004, the Pennsylvania Uniform Trade Secrets Act ("PUTSA") is located at chapter 53 of title 12 of the Pennsylvania Consolidated Statutes. PUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, PUTSA prohibits "misappropriation" of trade secrets and provides certain remedies. In addition, Pennsylvania law may impose criminal penalties for stealing trade secrets. See 18 Pa. Cons. Stat. § 3930 (link is to the entire code; you need to choose title 18, part II, article C, chapter 39, subchapter B, and then choose the specific provision).

      Definitions

      12 Pa. Cons. Stat. § 5302 (link is to the entire code; you need to choose title 12, part V, chapter 53, and then choose the specific provision) defines the key terms of PUTSA:

      "Improper means." Includes, but is not limited to, theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means.

      "Misappropriation." Includes:

      (1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (2) disclosure or use of a trade secret of another without express or implied consent by a person who:
      (i) used improper means to acquire knowledge of the trade secret;
      (ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
      (A) derived from or through a person who had utilized improper means to acquire it;
      (B) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
      (C) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (iii) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      "Person." A natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency or any other legal or commercial entity.

      "Trade secret." Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:

      (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
      (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: PUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See 12 Pa. Cons. Stat. Ann. § 5303 (link is to the entire code; you need to choose title 12, part V, chapter 53, and then choose the specific provision). Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See 12 Pa. Cons. Stat. Ann. § 5304 (link is to the entire code; you need to choose title 12, part V, chapter 53, and then choose the specific provision).
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See 12 Pa. Cons. Stat. Ann. § 5305 (link is to the entire code; you need to choose title 12, part V, chapter 53, and then choose the specific provision).

      Statute of Limitations

      The statute of limitations for a trade secret claim in Pennsylvania is three years. See 12 Pa. Cons. Stat. Ann. § 5307 (link is to the entire code; you need to choose title 12, part V, chapter 53, and then choose the specific provision).

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      Trade Secrets Law in Texas

      Note: This page covers information specific to Texas. See the Trade Secrets overview for more general information.

      Texas has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. In fact, Texas does not have a statute governing trade secrets law. Instead, it is based solely on the common law, which is the compilation of prior court decisions in the state. Like the UTSA, however, Texas law creates civil liability for "misappropriation" of someone else's trade secret(s). In addition, Texas law may impose criminal penalties for stealing trade secrets. See Texas Penal Code § 31.05.

      Definitions

      Texas courts have largely adopted the definition of trade secret from Section 757 of the Restatement of Torts: "A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it." The Restatement of Torts explains further that a trade secret differs from other secret information in a business in that it is not simply information about single or ephemeral events, but rather a process or device for continuous use in the operation of the business. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.

      Under Texas law, misappropriation consists of use or disclosure of a trade secret that was acquired through a relationship of trust (such as employment), or through fraud or other improper means, such as theft, bribery, or hacking. This definition appears to include publishing a trade secret while knowing that your source obtained it through improper means or in breach of a confidentiality agreement.

      Remedies

      If a court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: CUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages and attorneys' fees.

      Statute of Limitations

      The statute of limitations for a civil trade secret claim in Texas is three years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.010.

      Criminal Law

      As stated above, Texas also makes it a crime to steal trade secrets. Theft of a trade secret is a felony of the third degree. Third degree felony convictions in Texas carry a punishment of two to ten years in prison and a fine up to $10,000. See Tex. Penal Code Ann. § 12.34.

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      Trade Secrets Law in Virginia

      Note: This page covers information specific to Virginia. See the Trade Secrets overview for more general information.

      The Virginia Uniform Trade Secrets Act ("VUTSA") is located at chapter 26 of title 59.1 of the Virginia Code. VUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, VUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      Va. Code § 59.1-336 defines the key terms of VUTSA:

      Trade secret means information, including but not limited to, a formula, pattern, compilation, program, device, method, technique, or process, that:

      1. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
      2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      Misappropriation means:

      1. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      2. Disclosure or use of a trade secret of another without express or implied consent by a person who
      a. Used improper means to acquire knowledge of the trade secret; or
      b. At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
      (1) Derived from or through a person who had utilized improper means to acquire it;
      (2) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use;
      (3) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (4) Acquired by accident or mistake.

      Improper means includes theft, bribery, misrepresentation, use of a computer or computer network without authority, breach of a duty or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

      Note that the First Amendment may protect you from civil liability or criminal prosecution for publishing trade secrets, provided you were not engaged in the improper conduct that led to the secrets' misappropriation. This potential protection stems from a case called Bartnicki v. Vopper, 532 U.S. 514 (2001). See Publishing Trade Secrets for more information about this case. 

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: VUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Va. Code § 59.1-337. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Va. Code § 59.1-338.
      • Attorney's Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. See Va. Code § 59.1-338.1.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Virginia is three years. See Va. Code § 59.340.

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      Trade Secrets Law in Washington

      Note: This page covers information specific to Washington. See the Trade Secrets overview for more general information.

      The Washington Uniform Trade Secrets Act ("WUTSA") is located at chapter 108 of title 19 of the Revised Code of Washington. WUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, WUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      Wash. Rev. Code § 19.108.010 defines the key terms of WUTSA:

      (1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means;

      (2) "Misappropriation" means:

      (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (b) Disclosure or use of a trade secret of another without express or implied consent by a person who:
      (i) Used improper means to acquire knowledge of the trade secret; or
      (ii) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was
      (A) derived from or through a person who had utilized improper means to acquire it,
      (B) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or
      (C) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (iii) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

      (3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

      (4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process that:

      (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
      (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: WUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See Wash. Rev. Code § 19.108.020. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's ability to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See Wash. Rev. Code § 19.108.030.
      • Attorneys' Fees: If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See Wash. Rev. Code § 19.108.040.

      Statute of Limitations

      The statute of limitations for a trade secret claim in Washington is three years. See Wash. Rev. Code § 19.108.060.

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      Trade Secrets Law in the District of Columbia

      Note: This page covers information specific to the District of Columbia. See the Trade Secrets overview for more general information.

      The District of Columbia Uniform Trade Secrets Act ("DUTSA") is located in chapter 4 of title 36 of the District of Columbia Official Code. DUTSA is largely identical to the Uniform Trade Secrets Act. For generally applicable information on trade secrets claims and defenses, see Basics of a Trade Secret Claim and Publishing Trade Secrets.

      Like the Uniform Trade Secret Act, DUTSA prohibits "misappropriation" of trade secrets and provides certain remedies.

      Definitions

      D.C. Code § 36-401 defines the key terms of the Act:

      (1) "Improper means" means theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

      (2) "Misappropriation" means:

      (A) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
      (B) Disclosure or use of a trade secret of another without express or implied consent by a person who:
      (i) Used improper means to acquire knowledge of the trade secret; or
      (ii) At the time of disclosure or use, knew or had reason to know that the trade secret was:
      (I) Derived from or through a person who had utilized improper means to acquire it;
      (II) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use;
      (III) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
      (iii) Before a material change in his or her position, knew or had reason to know that the information was a trade secret and knowledge of the trade secret had been acquired by accident or mistake.

      (3) "Person" means a natural person, corporation, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

      (4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

      (A) Derives actual or potential independent economic value, from not being generally known to, and not being readily ascertainable by, proper means by another who can obtain economic value from its disclosure or use; and
      (B) Is the subject of reasonable efforts to maintain its secrecy.

      For generally applicable information on how a trade secrets claim works, see Basics of a Trade Secret Claim.

      Remedies

      If the court finds that a defendant has misappropriated a plaintiff's trade secret(s), it may impose the following remedies:

      • Injunctive Relief: DUTSA empowers a court to order a defendant to stop violating the plaintiff's rights and to take steps to preserve the secrecy of the plaintiff's information. See D.C. Code § 36-402. Most importantly, this means that a court has the authority, as far as the law of trade secrets goes, to order you to stop publishing someone's trade secrets if it finds that your publication amounts to misappropriation. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. For details, see Publishing Trade Secrets.
      • Damages: A court can make a defendant pay money damages to the plaintiff for the economic harm suffered as a result of a trade secret violation. This may include the plaintiff's losses resulting from the misappropriation and the defendant's profits derived from it. In lieu of those damages, a court can also order a losing defendant to pay a royalty to the trade secret owner. If the court determines that the defendant acted willfully or maliciously, it may award the plaintiff punitive damages in an amount up to twice its actual damages. See D.C. Code § 36-403.
      • Attorneys' Fees:- If a plaintiff sues and wins, the court may award attorneys' fees if it finds that the defendant acted willfully or maliciously. On the other hand, if the defendant wins, the court may award attorneys' fees if it finds that the plaintiff acted in bad faith when filing the lawsuit. The court may also award attorneys' fees if a motion to terminate an injunction is made or resisted in bad faith. See D.C. Code § 36-404.

      Statute of Limitations

      The statute of limitations for a trade secret claim in the District of Columbia is three years. See D.C. Code § 36-406.

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      Risks Associated With Publication

      Every time you publish something online, whether it's a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world.

      Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. The sections that follow are not intended to make you an expert on media law, but merely to help you identify potential "red flags" so that when you publish something that might result in liability, you will know to be extra careful and will take the necessary steps to minimize your potential legal risks.

      Let's start with the more obvious risks.

      First, if you publish information that harms the reputation of another person, group, or organization, or inflicts emotional distress upon another person, you may be liable for "defamation" or "false light." Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). False light, which is similar to defamation, generally involves untrue factual implications about the subject that, although they might not hold the subject up to scorn or ridicule, nevertheless cause emotional distress. The crux of both of these claims is falsity; with very rare exceptions, truthful statements and implications that harm another's reputation will not create liability, although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature. We explain the details of defamation and false light and provide some practical tips for avoiding defamation and false light claims in the section on Publishing Information that Harms Reputation.

      Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This could include such things as writing about a person's medical condition, sexual activities, or financial troubles.

      If you use someone else's name, likeness, or other personal attributes without their permission for an exploitative purpose you could also face liability for misappropriation or violation of the right of publicity. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. We discuss the details of misappropriation/right of publicity and private facts claims and provide some practical tips for avoiding these claims in the section on Publishing Personal and Private Information.

      Third, if you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, section 230 of the Communications Decency Act (“CDA 230”) will likely shield you from liability for certain kinds of problematic statements made by your users, guests and other third-parties on your site. This important federal law protects you from tort liability for statements contained in these materials – and any other user-submitted content – you publish on your site. You will not lose this immunity even if you moderate or edit this content, whether for accuracy or civility, so long as your edits do not substantially alter the meaning of the original statements. Keep in mind that CDA 230 will only protect you if a third-party – not you or your employee or someone acting under your direction – posts something on your blog or website. It does not shield you from liability for your own statements. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fourth, if you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law.  Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims (but not trademark or other intellectual property claims) under the Digital Millennium Copyright Act (DMCA).  In order to take advantage of the DMCA, you must register an agent with the Copyright Office to receive notices of infringement, establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  We cover liability associated with copyright, trademark, and trade secrets, as well as the procedures you should follow under the DMCA, in the section on Intellectual Property.

      Fifth, if you are a blogger or social media user who reviews or otherwise writes about products and services, the Federal Trade Commission has issued "Guides Concerning the Use of Endorsements and Testimonials in Advertising" that may impose disclosure requirements on you.  These guidelines require that you disclose "material connections" you may have with a company whose products or services you "endorse."  Without the legal jargon, this means that bloggers and social media users must disclose their relationship with a company when they are being paid or otherwise compensated by the company to comment favorably on its products or services.  We cover these requirements in the section on Publishing Product or Service Endorsements.

      Lastly, as you publish your work online you may want to correct things you have previously published. Your willingness to fix past errors in your work will provide several benefits. It will make your work more accurate and reliable and will likely diminish your liability for defamation and other potential legal claims. We explain the benefits of correcting your errors and provide some practical tips for handling requests to correct or remove material in the section on Correcting or Retracting Your Work After Publication.

      Jurisdiction: 

      Publishing Information that Harms Another's Reputation

      When you publish online, whether it's on a blog, in a podcast, in a video you upload to YouTube, or simply in a comment on another's website, you might say or do something that harms the reputation of another person, group, or organization. Fortunately, not everything you publish that harms the reputation of others will open you up to legal liability. For example, you won't generally face legal liability if you simply state your opinion, even if your opinion is harsh, critical, or wildly off-base.

      Nevertheless, if you find yourself about to publish something that could harm another's reputation, you should spend some time familiarizing yourself with the various laws that protect reputation. The sections that follow are not intended to make you an expert on libel law, but merely to help you identify potential "red flags" so that when you publish something that might negatively impact the reputation of another person, group, or organization, you will know to be extra careful and will take the necessary steps to minimize your potential legal liability.

      First, ask yourself whether what you intend to publish would UPSET YOU if someone else were to publish the information about you. This simple test won't tell you for sure whether you will be liable if the information you publish turns out to be false, but it will get you focused on the statements that should be of greatest concern. Moreover, putting aside the legal implications of what you publish, statements that upset others are more likely to draw their ire and result in a lawsuit, even when they don't actually have a viable legal claim. Depending on what you say and how you say it, you will likely need to be concerned with two different, but related, legal doctrines that aim to protect against reputational harm:

      • Defamation: Defamation is the general term for a legal claim involving injury to one's reputation caused by false statements of fact and includes both libel and slander. The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

      • False Light: False light is similar to defamation. Claims for false light generally involve untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a photograph you pulled from Flickr of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.

      Keep in mind that the republication of someone else's words can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).

      However, there is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      So, what should you do if you are facing the prospect of a lawsuit for defamation or false light?

      First, familiarize yourself with the section on Practical Tips for Avoiding Liability Associated with Harms to Reputation. While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize the likelihood of your being on the receiving end of a defamation or false light lawsuit.

      Second, if you think you've been improperly sued in retaliation for your speaking out on a public issue or controversy, you may be able to get the case dismissed or file a counter claim under your state's law protecting against Strategic Lawsuits Against Public Participation (SLAPP). If you are sued in a state that has an anti-SLAPP law, you may be able to end the lawsuit quickly and recover your costs and attorneys' fees.

      Jurisdiction: 

      Subject Area: 

      Defamation

      Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

      Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can -- and often do -- vary from state to state. Accordingly, you should consult your state's law in the State Law: Defamation section of this guide for specific information.

      Generally speaking, a person who brings a defamation lawsuit must prove the following:

      1. The defendant published the statement. In other words, that the defendant uttered or distributed it to at least one person other than the plaintiff. You don’t need to be a media mogul to be a publisher. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If you publish something on the Internet, you can assume that this requirement has been met.

      2. The statement is about the plaintiff. The statement need not name the person explicitly if there is enough identifying information that those who know the person will recognize the statement as being about him or her. For more information, see the section on Who Can Sue For Defamation.

      3. The statement harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade. For more information, see the section on What is a Defamatory Statement.

      4. The statement was published with some level of fault. Fault requires that the defendant did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official. The level of fault that must be proven is discussed in the Actual Malice and Negligence section of the legal guide.

      5. The statement was published without any applicable privilege. A number of privileges may be available depending on what the defendant published and the source(s) he relied on for the information. For more information, see the section on Defamation Privileges and Defenses in this guide.

      In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false. In cases involving matters of purely private concern, in many states the burden of proving truth is on the defendant. This is not to say that every detail you publish must be perfectly accurate to avoid liability. If you get a few minor details wrong, this will not necessarily negate the truth of what you say so long as the statement at issue is substantially true. See the section on Substantial Truth for more information.

      Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion). 

      Keep in mind that the republication of someone else's defamatory statement can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).

      On the other hand, if you repeat what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect you provided you attribute the information you gathered and are accurate in your reporting. See the section on Defamation Privileges and Defenses for information on this, and other, privileges.

      There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Damages for Defamation

      In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize "per se" defamation, where damage is presumed if the defamatory statement relates to one of the following subjects:

      • Impugns a person's professional character or standing;
      • States or implies that an unmarried person is unchaste (e.g., is sexually active);
      • States or implies that a person is infected with a sexually transmitted disease; or
      • States or implies that the person has committed a crime of moral turpitude (e.g., theft or fraud).

      See the State Law: Defamation section of this guide for specific information on what each state recognizes. 

      If a plaintiff succeeds in proving defamation, he or she is entitled to recover what is called compensatory damage, which is the payment of money to compensate the plaintiff for the wrong that has been done. This includes not only out-of-pocket expenses (e.g., doctor's bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant.

      Note that some states require that a plaintiff must first ask the defendant to correct or remove the defamatory statement in order to be entitled to certain types of damages. See the section on Correcting or Retracting Your Work After Publication for more information.

      Parallel Legal Claims Based on Allegedly False Statements

      It is common for defamation plaintiffs to assert not only a claim for defamation, but also claims for infliction of emotional distress, interference with business relationships, etc., arising out of the same allegedly false statements. These parallel claims will ordinarily be subject to the same limitations, privileges and defenses as the main defamation claim. For more information, see our section on Other Falsity-Based Legal Claims.

      Jurisdiction: 

      Subject Area: 

      Other Falsity-Based Legal Claims

      As discussed elsewhere in this guide, there are substantial privileges and defenses available to defendants in defamation actions. The First Amendment and related state law doctrines that protect speech often present insurmountable obstacles for defamation plaintiffs. In response, plaintiffs often attempt to evade rather than overcome these obstacles by relabeling their defamation claims as another form of legal claim.

      In lawsuits based upon allegedly false speech, it is common for plaintiffs to include a wide variety of ancillary claims in addition to their main defamation claim. Common additional claims include:

      • Intentional or negligent infliction of emotional distress
      • Tortious interference with contract or business relations
      • "False light" invasion of privacy
      • Unfair or deceptive trade practices
      • Fraud or misrepresentation
      • State or federal civil rights act violations 
      • Conspiracy to commit defamation

      Each of these claims has its own elements and defenses, which an attorney can assist you to understand (see especially our section on "false light" claims). However, a number of courts, including the United States Supreme Court, have raised additional concerns when such claims are premised upon allegations that the defendant published a false statement that damaged the plaintiff's reputation -- i.e., the classic defamation lawsuit fact pattern.

      In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court considered claims brought against Hustler Magazine by high-profile preacher and pundit Jerry Falwell arising out of a parody ad that ran in the magazine. The claims based on the parody ad included defamation and intentional infliction of emotional distress; a jury decided in Hustler's favor on the defamation claim, but awarded damages to Falwell on the emotional distress claim. The Supreme Court reversed the jury verdict for Falwell on the emotional distress claim, invoking constitutional standards applied in defamation cases to do so.  Rejecting as irrelevant the distinction that emotional distress cases are concerned with an intent to injure feelings rather than reputation, id. at 52-53, the Court held that the First Amendment standards stated in the defamation case of New York Times Co. v. Sullivan were equally applicable to Falwell's emotional distress claims as an essential protection for free speech. Id. at 53-56. Because Falwell had failed to prove "a false statement of fact which was made with 'actual malice,'" the Court held that he was not entitled to recover damages for emotional distress. Id. at 56-57.

      Subsequently, other courts have held that plaintiffs cannot evade constitutional and state law privileges and defenses for speech by recasting their defamation claims as different theories of tort. See, e.g., Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) ("[A] plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim."); Tierney v. Vahle, 304 F.3d 734, 743 (7th Cir. 2002) ("To evade the constitutional limitations on defamation suits by charging the alleged defamer with participation in a conspiracy, which is to say just by relabeling the tort, cannot be permitted."); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1034 (2nd Cir. 1997) ("[T]he Chaikens cannot avoid the obstacles involved in a defamation claim by simply relabeling it as a claim for intentional infliction of emotional distress."); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995) ("it is not imaginable that [a false light claim] could escape the same constitutional constraint as [a] defamation claim"); Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) ([T]he malice standard required for actionable defamation claims during labor disputes must equally be met for a tortious interference claim based on the same conduct or statements. This is only logical as a plaintiff may not avoid the protection afforded by the Constitution ... merely by the use of creative pleading."); see also Correllas v. Viveiros, 410 Mass. 314, 324 (1991) ("A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.").

      Therefore, if a plaintiff brings a variety of claims against you based upon allegedly false statements, you might be able to rely upon both defenses to the particular claims asserted as well as First Amendment and state law defenses to defamation (whether or not the plaintiff actually includes a specific defamation claim in his complaint).

      On the other hand, it is unlikely that defamation defenses would apply to claims based upon true speech, such as publication of private facts, or intellectual property claims, such as trademark infringement or violations of the right of publicity. However, these claims are not related to injury to personal reputation; rather, they involve revelation of private information (for a private facts claim), damage to a brand or business (for a trademark claim), or misappropriation of the commercial value of one's name (for a right of publicity claim). If it appears that a plaintiff is attempting to use one of these theories of liability to sue you for damage to his or her individual reputation from an allegedly false statement, you probably would have a strong argument that such theories are simply inapplicable. Rather, the plaintiff would have to proceed instead on a defamation claim (with all of the burdens placed upon the plaintiff in such a case).

      Jurisdiction: 

      Subject Area: 

      Who Can Sue For Defamation

      In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. For example, a statement that "a local policeman who recently had an auto accident had been seen drinking alcohol while on duty" would likely be actionable because the policeman could be identified based on his recent accident.

      Group Libel

      Accordingly, defamatory statements about a group or class of people generally are not actionable by individual members of that group or class. There are two exceptions to this general rule that exist when:

      • the group or class is so small that the statements are reasonably understood to refer to the individual in question; or
      • the circumstances make it reasonable to conclude that the statement refers particularly to the individual in question.

      See Restatement (2d) of Torts, § 564A (1977).

      As to the first exception -- statements about a small group -- courts have often held that an individual group member can bring a claim for defamation for statements directed at a group of 25 or fewer people. The 25-person line is not a hard-and-fast rule, but rather the way courts commonly distinguish between a group small enough for statements about the whole group to be imputed to individual members and one that is too large to support such an imputation.

      The case of Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952), provides a good illustration of this general rule. In that case, the defendants wrote that "most of the [Neiman-Marcus] sales staff are fairies" and that some of the company's saleswomen were "call girls." Fifteen of the 25 salesmen and 30 of the 382 saleswomen at the store brought suit for defamation. Applying New York and Texas law, the court held that the salesmen had a valid cause of action, but the saleswomen did not. Even though the statement referred to "most of" the salesmen, without naming names or specifying further, the statement could be understood to refer to any individual member of this small group. The group of saleswomen, however, was so large that a statement that some of them were "call girls" would not be understood as referring to any individual member of the group.

      As to the second exception to the rule against group libel -- when circumstances point to a particular individual -- courts have allowed defamation claims where the statement is facially broad, but the context makes it clear that it referred to the plaintiff. For example, Bill Blogger may be able to claim defamation based on the statement "all bloggers who attended the most recent city council meeting payed bribes to the mayor," where Bill is the only blogger who attended the meeting and readers will therefore understand the statement as being a thinly veiled indictment of him.

      A company or organization can be a defamation plaintiff. In fact, the largest jury verdict every awarded in a libel case came in a case brought by a business plaintiff.

      Note that each state decides what is required to establish defamation, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.

      Fictional Works

      A person may claim defamation by a literary or dramatic work intended as fictional if the characters in the work resemble actual persons so closely that it is reasonable for readers or viewers to believe that the character is intended to portray the person in question. A disclaimer that the work is fiction and does not depict any persons living or dead will not automatically foreclose a defamation claim, but it is still a good idea and may be used as evidence as to whether readers or viewers would be reasonable in concluding that it is a depiction of the plaintiff.

      Jurisdiction: 

      Subject Area: 

      What is a Defamatory Statement

      A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade. Statements that are merely offensive are not defamatory (e.g., a statement that Bill smells badly would not be sufficient (and would likely be an opinion anyway)). Courts generally examine the full context of a statement's publication when making this determination.

      In rare cases, a plaintiff can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact. In most jurisdictions, as a matter of law, a dead person has no legally-protected reputation and cannot be defamed.

      Defamatory statements that disparage a company's goods or services are called trade libel. Trade libel protects property rights, not reputations. While you can't damage a company’s "reputation," you can damage the company by disparaging its goods or services.

      Because a statement must be false to be defamatory, a statement of opinion cannot form the basis of a defamation claim because it cannot be proven true or false. For example, the statement that Bill is a short-tempered jerk, is clearly a statement of opinion because it cannot be proven to be true or false. Again, courts will look at the context of the statement as well as its substance to determine whether it is opinion or a factual assertion. Adding the words "in my opinion" generally will not be sufficient to transform a factual statement to a protected opinion. For example, there is no legal difference between the following two statements, both of which could be defamatory if false:

      • "John stole $100 from the corner store last week."
      • "In my opinion, John stole $100 from the corner store last week."

      For more information on the difference between statements of fact and opinion, see the section on Opinion and Fair Comment Privileges.

      Defamation Per Se

      Some statements of fact are so egregious that they will always be considered defamatory. Such statements are typically referred to as defamation "per se." These types of statements are assumed to harm the plaintiff's reputation, without further need to prove that harm. Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:

      • a criminal offense;

      • a loathsome disease;

      • matter incompatible with his business, trade, profession, or office; or

      • serious sexual misconduct.

      See Restatement (2d) of Torts, §§ 570-574. Keep in mind that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.

      It is important to remember that truth is an absolute defense to defamation, including per se defamation. If the statement is true, it cannot be defamatory. For more information see the section on Substantial Truth.

      Subject Area: 

      Proving Fault: Actual Malice and Negligence

      Unlike other countries that hold a publisher liable for every defamatory statement regardless of what steps he or she took prior to publication, under U.S. law a plaintiff must prove that the defendant was at fault when she published the defamatory statement. In other words, the plaintiff must prove that the publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.

      Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbor is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her. Determining who is a public or private figure is not always easy. In some instances, the categories may overlap. For example, a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes.

      We discuss both of these standards and when they apply in this section.

      Actual Malice

      In a legal sense, "actual malice" has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined "actual malice" in the defamation context as publishing a statement while either

      • knowing that it is false; or

      • acting with reckless disregard for the statement's truth or falsity.

      It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.

      Not surprisingly, this is a very difficult standard for a plaintiff to establish. Indeed, in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation.

      The actual malice standard applies when a defamatory statement concerns three general categories of individuals: public officials, all-purpose public figures, and limited-purpose public figures. Private figures, which are discussed later in this section, do not need to prove actual malice.

      Public Officials

      The "public officials" category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a "public official" for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Some courts have even extended the protection to all individuals engaged in matters of public health, such as hospital staff, given the importance of health issues for the general public. See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).

      In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.

      Public Figures

      There are two types of "public figures" recognized under defamation law: "all-purpose" public figures and "limited-purpose" public figures.

      All-purpose public figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). For these individuals, the actual malice standard extends to virtually all aspects of their lives.

      This category includes movie stars, elite professional athletes, and the heads of major corporations. Tom Cruise is one; that character actor you recognize instantly but can't quite name is probably not an all-purpose public figure.

      As with public officials, the passage of time does not cause this class of individuals to lose their public figure status as long as the original source of their fame is of continued interest to the public.

      Limited-Purpose Public Figures

      The second category of public figures is called "limited-purpose" public figures. These are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate.

      This category also includes individuals who have distinguished themselves in a particular field, making them "public figures" regarding only those specific activities. These limited-purpose public figures are not the Kobe Bryants, who are regarded as all-purpose public figures, but rather the journeymen basketball players of the league.

      For limited-purpose public figures, the actual malice standard extends only as far as defamatory statements involve matters related to the topics about which they are considered public figures. To return to our basketball example, the actual malice standard would extend to statements involving the player's basketball career; however, it would not extend to the details of his marriage.

      As regards figures who become prominent through involvement in a current controversy, the law is unfortunately rather murky. In general, emphasis is placed not on whether the controversy is a subject of public interest, but rather:

      • The depth of the person's participation in the controversy.
      • The amount of freedom he or she has in choosing to engage in the controversy in the first place (e.g., if they were forced into the public light). See Wolston v. Reader's Digest Association, 443 U.S. 157 (1979).
      • Whether he has taken advantage of the media to advocate his cause. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).

      Keeping in mind the difficulty of making the determination of who is a limited-purpose public figure, we've collected the following cases which might be helpful. Courts have found the following individuals to be limited-purpose public figures:

      • A retired general who advocated on national security issues. See Secord v. Cockburn, 747 F.Supp. 779 (1990).
      • A scientist who was prominent and outspoken in his opposition to nuclear tests. See Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (1966).
      • A nationally-known college football coach accused of fixing a football game. See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
      • A professional belly dancer for a matter related to her performance. See James v. Gannet Co., 40 N.Y.2d 415 (1976).
      • A Playboy Playmate for purpose of a parody. See Vitale v. National Lampoon, Inc., 449 F. Supp 442 (1978).

      Courts have found the following individuals not to be limited-purpose public figures (and therefore private figures):

      • A well-known lawyer and civic leader engaged in a very public trial involving police brutality. See Gertz v. Robert Welch Inc., 418 U.S. 323 (1972).
      • A socialite going through a divorce who both collected press clippings on herself and held press conferences regarding the divorce. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).
      • A Penthouse Pet for purposes of parody. See Pring v. Penthouse Int'l Ltd., 695 F.2d 438 (1982).

      Individuals who are considered to be limited-purpose public figures remain so as long as the public has an "independent" interest in the underlying controversy. Unlike all-purpose public figures, it is relatively easy for a limited-purpose public figure to lose his status if the controversy in which he is involved has been largely forgotten. But most will still maintain their status. For example, a woman who had publicly dated Elvis Presley over a decade earlier, but who had since married and returned to "private" life, was found to remain a public figure for stories related to her relationship with Presley. See Brewer v. Memphis Publishing Co., 626 F.2d. 1238 (5th Cir. 1980).

      Evaluating Public Officials, Public Figures, and Limited-Purpose Public Figures

      A public official is a person who holds a position of authority in the government and would be of interest to the public even if the controversy in question had not occurred.

      • The actual malice standard extends to statements touching on virtually any aspect of the public official's life.
      • Even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.
      All-purpose public figures are those whose fame reaches widely and pervasively throughout society.
      • The actual malice standard extends to statements involving virtually any aspect of their private lives.
      • Passage of time does not affect their status as public figures as long as the source of their fame is of continued interest to the public.
      A limited-purpose public figure is either:
      1.  
        1. One who voluntarily becomes a key figure in a particular controversy, or
        2. One who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.
      • The actual malice standard applies only to subject matter related to the controversy in question or to the field in which the individual is prominent, not to the person's entire life.
      • Passage of time does not affect an individual who has achieved fame through participation in a controversy as long as the public maintains an "independent" interest in the underlying controversy.

      See this Chart of Public vs Private Individuals for additional examples.

      Defining who is a public figure for purposes of First Amendment protections is a question of federal constitutional law, and therefore the federal courts say on the matter is decisive and binding on state courts. Accordingly, state courts cannot remove public-figure status from those who have been deemed public figures by the federal courts, but states can broaden the scope of the the classification. For example, while the Supreme Court has not spoken on the status of educators, most states have recognized teachers as a class of public figures. But some states, for example California, have not done so. Consult your State Law: Defamation section for specific guidelines on your jurisdiction.

      Negligence Standard and Private Figures

      Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than "actual malice." Some states, however, impose a higher standard on private figures, especially if the statement concerns a matter of public importance. You should review your state's specific law in the State Law: Defamation section of this guide for more information.

      A plaintiff can establish negligence on the part of the defendant by showing that the defendant did not act with a reasonable level of care in publishing the statement at issue. This basically turns on whether the defendant did everything reasonably necessary to determine whether the statement was true, including the steps the defendant took in researching, editing, and fact checking his work. Some factors that the court might consider include:

      • the amount of research undertaken prior to publication;

      • the trustworthiness of sources;

      • attempts to verify questionable statements or solicit opposing views; and

      • whether the defendant followed other good journalistic practices.

      While you can't reduce your legal risks entirely, if you follow good journalistic practices you will greatly reduce the likelihood that you will be found negligent when publishing a defamatory statement. Review the sections in this guide on Practical Tips for Avoiding Liability Associated with Harms to Reputation and Journalism Skills and Principles for helpful suggestions.

      Jurisdiction: 

      Subject Area: 

      Examples of Public and Private Figures

      Review this list of examples to help understand the difference between public figures/officials, limited-purpose public figures, and private figures for purposes of defamation law.

      Name Type
      Town Mayor

       

      Public Official (A mayor is an elected official and therefore is a public official for purposes of defamation law.)

       

      George W. Bush

       

      Public Official (The President of the United States is an elected official and therefore is a public official for purposes of defamation law.)

       

      Laura Bush

       

      Public Figure (The President’s wife is a person who has pervasive power and influence in society and is therefore a public figure for purposes of defamation law.)

       

      Paris Hilton

       

      Public Figure (Well-known celebrities have pervasive power and influence in society and are therefore public figures for purposes of defamation law.)

       

      Bill Gates

       

      Public Figure (As the head of a major corporation and one of the richest men in the world, Bill Gates is a public figure for purposes of defamation law.)

       

      Roger Clemens

       

      Public Figure or Limited-Purpose Public Figure (Roger Clemens is a well-known athlete and likely to be considered a public figure; at a minimum, he would be a limited-purpose public figure as to issues involving sports.)

       

      Local expert on teen suicide

       

      Limited-Purpose Public Figure (The expert would be a limited-purpose public figure because she has distinguished herself in this particular field.)

       

      Church pastor who decries abortion

       

      Limited-Purpose Public Figure (The pastor would be a limited-purpose public figure because he thrust himself to the forefront of a particular controversy in order to influence the resolution of the issue.)

       

      Local grocery store manager

       

      Private Figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)

       

      Your shy neighbor

       

      		Private figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)

      Jurisdiction: 

      Subject Area: 

      Defamation Privileges and Defenses

      As a general rule, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make your work more accurate and credible).

      There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.

      Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information you are performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Keep in mind, however, the privileges described below are not available in all circumstances or in every state, so you should also review your state's specific law in the State Law: Defamation section of this guide.

      Possible privileges and defenses include:

      • Substantial Truth: "Truth" is an absolute defense to an action for defamation. Even if you are not sure that what you've published is true, you should read this section.

      • Opinion and Fair Comment Privileges: Statements of opinion generally cannot support a cause of action for defamation, even if they are outrageous or widely off the mark. A defense similar to opinion is "fair comment on a matter of public interest." If the mayor is alleged to be involved in a corruption scandal, expressing your opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

      • Fair Report Privilege: This very important privilege may apply if you relied on a public document or a statement by a public official for the incorrect information, made clear that the public document or statement was your source, and fairly and accurately used the source.

      • Neutral Reportage Privilege: The neutral reportage privilege covers unverified accusations made by one public figure about another on a matter of legitimate public interest, such as when a politician who opposes a health care bill says that the bill's sponsor is taking money from the pharmaceutical industry.

      • Wire Service Defense: If you republish information from a reputable news source (such as the Associated Press) you may be entitled to the wire service defense if it turns out that the information was false.

      • Statute of Limitations: If the plaintiff has waited too long to file a lawsuit, the defamation claim might be barred by the statute of limitations, which sets the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred.

      Substantial Truth

      "Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.

      The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.

      The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.

      Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:

      We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

      The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).

      Some examples of statements that courts have found to be "substantially true":

      • A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).

      • A statement that an animal trainer beat his animals with steel rods, when actually he had beaten them with wooden rods. See People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995).

      • A statement that a father sexually assaulted his stepdaughter 30-50 times, when the stepdaughter testified he had done so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577 (1993).

      • A statement that a man was sentenced to death for six murders, when in fact he was only sentenced to death for one. See Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998).

      • A statement that Terry Nichols was arrested after the Oklahoma City Bombing, when actually he had only been held as a material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).

      • A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

      Jurisdiction: 

      Subject Area: 

      Opinion and Fair Comment Privileges

      The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.

      This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.

      All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion.

      Compare the following two statements:

      • "During the last six months I've seen Carol in her backyard five times at around 1:30pm on a weekday seated in a deck chair with a beer in her hand. I think Carol must be an alcoholic."

      • "I think Carol must be an alcoholic."

      The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege.

      Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology.

      To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context.

      Distinguishing Between Statements of Fact and Opinion

      In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.

      Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.

      Some examples of protected opinions include the following:

      • Statements in the "Asshole of the Month" column in Hustler magazine that described a feminist leader as a "pus bloated walking sphincter," "wacko," and someone who suffers from "bizarre paranoia" were protected opinion because the context of the magazine and column made it clear that the statements were "understood as ridicule or vituperation" and "telegraph to a reader that the article presents opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

      • Statement in the New York Post that referred to the plaintiff as a "fat, failed, former sheriff's deputy" was protected opinion because it was hyperbole and had an "alliterative quality" with a "rhetorical effect indicative of a statement of opinion." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

      • Statements on a radio talk show that described the plaintiff as a "chicken butt," "local loser" and "big skank" were not defamatory because they were "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

      • A cartoon of a noted evangelist leader fornicating drunk in an outhouse with his mother because the parody was so outrageous it could not "reasonably be understood as describing actual facts" about Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

      Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.

      Context and the Totality of the Circumstances

      In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion.

      The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context.

      But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:

      Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat-room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat-room. They were part of an on-going, free-wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

      In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege.

      To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

      • What is the common usage and specific meaning of the language used?

      • Is the statement verifiable? Can it be proven false?

      • What is the full context of the statement?

      • What are the social conventions surrounding the medium the statement occurred in?

      Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

      Jurisdiction: 

      Subject Area: 

      Fair Report Privilege

      The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.

      The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.

      Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

      1. Your source is an official public document or statement by a public official on a matter of public concern;

      2. You properly attribute the information to that source; and

      3. You fairly and accurately portray the information from the document or statement.

      Sources Covered By the Fair Report Privilege

      While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.

      Examples where the fair report privilege would probably apply include:

      • Statements made by a judge in a trial
      • A speech made by a city council member during a council meeting
      • Testimony during a trial
      • Facts recorded in a final police report
      • Analysis reported in an Environmental Protection Agency survey

      The privilege would probably not apply to:

      • Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
      • Gossip overheard on the courthouse steps
      • Offhand remarks made by a government official in a private setting
      • Statements made in a draft government report

      Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.

      Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.

      Ensuring That Your Use of Sources is "Fair and Accurate"

      Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.

      Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.

      But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.

      In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.

      Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

      Jurisdiction: 

      Subject Area: 

      Neutral Report Privilege

      Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.

      Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

      1. A responsible, prominent organization or individual;

      2. Makes a serious charge on a matter of public interest;

      3. Against another public figure or organization; and

      4. The charge is accurately and disinterestedly reported.

      Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

      The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

      What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

      Edwards, 556 F.2d at 120.  The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

      Examples of the Neutral Reportage Privilege

      Examples of instances where courts have applied the neutral reportage privilege include:

      • Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).
      • A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).
      • A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

      Differing State Approaches to the Neutral Reportage Privilege

      Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:

      • Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.

      • Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.

      • Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.

      Jurisdiction: 

      Subject Area: 

      Wire Service Defense

      If you republish a news item from a "reputable news service," you may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also cover if you republish content from a third-party. See the section on Publishing the Statements and Content of Others for more information.

      Generally speaking, in states that recognize the wire service defense, it will apply if:

      1. You republish a news item from a reputable news agency;

      2. You did not know the information was false;

      3. The news item on its face does not indicate any reason to doubt its veracity; and

      4. You do not substantially alter the news items when republishing it.

      In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire-service defense in light of RSS feeds and similar distribution tools.

      Keep in mind that rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense.

      Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.

      Jurisdiction: 

      Subject Area: 

      Statute of Limitations

      "Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts.

      Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.

      Because each state has its own statute of limitations for defamation claims, which vary between one and three years, you should refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.

      Determining When the Statute of Limitations Period Begins

      Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff).

      This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, could the statute of limitations begin anew at the time of each publication, such that the statute of limitations could restart every time someone reads a blog post or finds an archive copy of a newspaper in a library, even if the original material was published years ago?

      Single Publication Rule

      Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

      However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

      Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if you are thinking of substantially editing or rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.

      Jurisdiction: 

      Subject Area: 

      State Law: Defamation

       

      Choose a state from the list below for state-specific information on defamation law.  For general information on defamation and false light, see the section on Publishing Information that Harms Another's Reputation.

      Arizona Defamation Law

      Note: This page covers information specific to Arizona. For general information concerning defamation, see the Defamation Law section of this guide.

      Arizona Elements of Defamation

      In Arizona, the elements of a defamation claim are:

      1. a false statement concerning the plaintiff;
      2. the statement was defamatory;
      3. the statement was published to a third party;
      4. the requisite fault on the part of the defendant; and
      5. the plaintiff was damaged as a result of the statement.

      Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).

      To be “defamatory,” a statement must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).

      These elements of a defamation claim in Arizona are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      Arizona distinguishes between statements that constitute libel per se and libel per quod. Libel per se are written communications which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honesty, integrity, virtue or reputation.” Ilitzky v. Goodman, 57 Ariz. 216, 220‑21 (Ariz. 1941). In contrast, libel per quod consists of written communications which “on their face do not fall within the definition [of defamation] but which by reason of special extraneous circumstances actually do.” Id. at 221.

      Arizona also distinguishes between statements that constitute slander per se and slander per quod. In Arizona, a statement that does any of the following is slander per se:

      • Charges a contagious or venereal disease, or that woman is not chaste; or
      • Tends to injure a person in his profession, trade, or business; or
      • Imputes the commission of a crime involving moral turpitude.

      Modla v. Parker, 495 P.2d 494, 4 n.1 (Ariz. Ct. App. 1972). Slander per quod are “all slanderous utterances which are not slanderous per se.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 6 n.4 (Ariz. Ct. App. 1985) approved as supplemented by Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (Ariz. 1986).

      The distinction between libel per se and per quod and slander per se and per quod matters because it effects the type of damages a plaintiff must allege to prevail. To recover for libel or slander per quod, a plaintiff must allege special damages, i.e., lost profits or other "pecuniary loss." Boswell, 152 Ariz. 1, 6 n.4. In contrast, to recover for libel or slander per se, a plaintiff does not have to allege special damages and may instead allege non-pecuniary damages, such as damage to his reputation. Moreover, in cases of libel or slander per se, damages may be presumed if:

      1. The plaintiff is a private figure and the alleged defamatory statement involves a matter of purely private concern; Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 481 (Ariz. 1986) or
      2. Actual malice is proven. Id.

      Public Officials

      Arizona courts have considered whether certain lower-level government employees qualify as public officials. They have held that the following individuals, among others, are public officials:

      Public Figures and Limited-Purpose Public Figures

      In Arizona, to classify a person as a public figure, the person must have achieved “‘such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Dombey, 150 Ariz. at 480 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

      The Arizona Supreme Court has recognized that an individual may become a limited-purpose public figure for a certain event or controversy when he “‘voluntarily injects himself or is drawn into a particular public controversy. . . .’” Id. (quoting Gertz, 418 U.S. at 351).

      In determining whether a person is a limited-purpose public figure, Arizona courts will consider whether the person has “‘thrust[] himself or his views into public controversy to influence others’” and whether the person’s “‘position with respect to matters of public concern gives him access to the media on a regular and continuing basis.’” Id. at 483 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).

      The Arizona Supreme Court has held that a person “‘is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.’” Id. (quoting Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979). Rather, the person must voluntarily assume a position that invites attention. Id. at 485 (quoting McDowell v. Paiewonsky, 769 F.2d 942, 950 (3rd Cir. 1985). In that regard, the Court has stated that “doing business with the government, being swept up in a controversy over an issue of public interest or concern, being named in articles creating a public controversy, and defending oneself against charges leveled in the media are all insufficient to automatically transform a private individual into a public figure.” Id. at 484.

      Arizona courts and the 9th Circuit have held the following individuals, among others, to be limited-purpose public figures:

      • A “publicly self‑acknowledged former hoodlum and organized crime enforcer” who testified against a mob boss in exchange for immunity from prosecution. Scottsdale Publ’g, Inc. v. Superior Court, 159 Ariz. 72, 73, 74 (Ariz. Ct. App. 1988).
      • A World War II veteran who had authorized a biography and solicited press coverage of that work. Thomas v. Los Angeles Times Commc’ns. LLC, 45 Fed. Appx. 801, 803 (9th Cir. 2002).
      • The insurance agent of record for an Arizona county, where the insurance agent made recommendations resulting in substantial expenditures from the public and financially benefited from his position, although he was not actually employed by the county. Dombey, 150 Ariz. at 484‑85.
      • An individual, in suing his former employer for defamation, who had contacted the media regarding his claims of wrongful termination and sent his complaint to approximately twenty companies in related business fields. Prendeville v. Singer, 155 Fed. Appx. 303, 305-06 (9th Cir. 2005).

      On the other hand, Arizona courts have found the following individuals and organizations, among others, to be private figures:

      • A company selling an electronic parts catalog where the company was not involved in any public controversy prior to the defendant’s allegedly defamatory statements. The Court specifically held that the company’s use of advertising did not make it a public figure. Dealer Computer Servs., Inc. v. Fullers’ White Mountain Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 (D. Ariz. Oct. 16, 2008).
      • A corporation selling diamonds and other precious stones, despite its use of mail and telephone solicitations. Antwerp Diamond Exch. of Am. Inc. v. Better Bus. Bureau of Maricopa Cnty., Inc., 130 Ariz. 523, 527 (Ariz. 1981) disapproved on other grounds in Dun & Broadstreet v. Greenmoss Builders, 472 U.S. 749, 753 n.1 (1985).

      Actual Malice and Negligence

      Arizona courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (Ariz. 1977).

      Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Privileges and Defenses

      Arizona courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Comment Privilege

      In Arizona, the fair comment privilege “is limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968).  If actual malice is shown, however, the privilege is defeated. Id.

      The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official.  The Arizona Supreme Court ruled that regardless of the defendant's media status, "when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie." Turner v. Devlin, 174 Ariz. 201, 205 (1993).

      The Arizona Supreme Court in the past has also explicitly recognized pure opinion as protected speech. MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (finding a statement "was pure opinion and not actionable").  It is unclear whether this recognition survived Turner and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1993), however.

      Fair Report Privilege

      In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.

      In Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 147 (Ariz. Ct. App. 1989), the Court of Appeals of Arizona held that the “public records privilege” applied to articles which were “a fair and accurate abridgment of the public records used.” In that case, the Arizona Republic published articles about the apprehension of a hitman at a local restaurant, which it described as a “hangout for narcotics dealers and users” owned by a man being investigated for fraud and attempted extortion. Id. at 145. The owners of the restaurant filed suit for defamation. The information in the articles was obtained from interviews with police officers, affidavits submitted to support searches of various locations, a grand jury indictment, and a booking slip on file at the Phoenix Police Department. Id. at 145‑46. The Court reviewed the articles, the search warrant affidavits, grand jury indictment, and booking slip and concluded that although the newspaper may have relied on interviews with police officers, which are not a public record, because the information obtained was available in the affidavits, indictment, and booking slip, the privilege applied. Id. at 146‑47.

      Neutral Reportage Privilege

      The CMLP has not identified any cases in Arizona concerning the neutral reportage privilege. If you are aware of any, please contact us. The 9th Circuit has mentioned the adoption of the neutral reportage privilege in other jurisdictions but does not appear to have specifically adopted it itself. See Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002).

      Wire Service Defense

      A federal district court in Arizona has applied the wire service defense in at least one case. In In re Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 931 F. Supp. 1487, 1492 (D. Ariz. 1996), the court held that the defense applied to an ABC-affiliate in Phoenix that broadcast an edition of “Prime Time Live” but played no part in the planning, reporting, production, or editing of the broadcast.

      Retraction or Correction

      By statute in Arizona, the type of damages a plaintiff may recover from a newspaper, magazine, or radio or television broadcaster can be limited by the publication of a retraction. A.R.S. § 12‑653.02 provides:

      In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages [i.e. damages with respect to the plaintiff’s property, business, trade, profession or occupation] unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

      If a correction is demanded within the time period prescribed by A.R.S. § 12‑653.02 and a correction is not published or broadcast within three weeks, the plaintiff may recover damages for loss of reputation and punitive damages if she can prove actual malice. A.R.S. § 12‑653.03.

      The applicability of the retraction statute in all cases in questionable because the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986).

      The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

      At least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

      Other Statutory Protections for Periodicals and Broadcasters

      A.R.S. § 12‑653 provides:

      An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

      A.R.S. § 12‑652 provides:

      1. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.
      2. An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.
      3. In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

      CMLP has not identified any Arizona cases in which these statutes have been applied. If you are aware of any, please contact us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation is one (1) year. See A.R.S. § 12‑541. The Court of Appeals of Arizona has stated that the general rule is that the statute of limitations begins to run upon publication; however, the Court has also created an exception to the general rule and held that the statute of limitations may instead begin to run upon discovery “in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report.” Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).

      By statute, the single publication rule applies in Arizona. See A.R.S. § 12-651. The statute provides, in pertinent part:

      1. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
      2. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

      For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

      The CMLP is not aware of any cases in Arizona that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Arizona cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      California Defamation Law

      Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.

      California Elements of Defamation

      Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.

      The elements of a defamation claim are:

      1. publication of a statement of fact
      2. that is false,*
      3. unprivileged,
      4. has a natural tendency to injure or which causes "special damage," and
      5. the defendant's fault in publishing the statement amounted to at least negligence.

      Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.

      *As a matter of law, in cases involving public figures or matters of public concern, the burden is on the plaintiff to prove falsity in a defamation action.  Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). In cases involving matters of purely private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999).  A reader further points out that, even when the burden is technically on the plaintiff to prove falsity, the plaintiff can easily shift the burden to the defendant simply by testifying that the statements at issue are false.

      Defamation Per Se

      A plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature.  See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008). 

      For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).

      Public Officials

      In California, public officials are those who have, or appear to the to have, substantial responsibility for or control over the conduct of government affairs. For example, the following persons have been considered public officials in California:

      • A police officer, an assistant public defender, an assistant district attorney, and a government employed social worker.

      Public Figures

      In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Someone who voluntarily seeks to influence resolution of public issues may also be considered a public figure in California. For example, the following persons have been considered public figures in California:

      • A former City Attorney who also represented the city's redevelopment agency;

      • A licensed clinical psychologist whose so-called “Nude Marathon” in group therapy is a means of helping people to shed their psychological inhibitions by the removal of their clothes;

      • An author and television personality;

      • The founder of a Church that has a program for the rehabilitation of drug addicts;

      • An associate of Howard Hughes, a famous aviator, movie producer, and billionaire, from approximately 1956 to 1970 who functioned as an "alter ego" and "personal representative" of Mr. Hughes;

      • A real-estate developer who was interested in building a housing development near a toxic chemical plant; and

      • A "prominent and outspoken feminist author" and anti-pornography advocate.

      Limited-Purpose Public Figures

      A limited-purpose public figure is a person who voluntarily injects herself or is drawn into a particular public controversy. It is not necessary to show that she actually achieves prominence in public debate; her attempts to thrust herself in front of the public is sufficient. Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose public figures, the alleged defamation must be relevant to the plaintiff's voluntary participation in the public controversy (if the issue requires expertise or specialized knowledge, the plaintiff's credentials as an expert would be relevant).

      In California, the following persons have been considered limited-purpose public figures:

      • The president of two corporations located in a California village that opposed the rezoning of property adjacent to his property. Kaufman v. Fidelity Fed. Sav. & Loan Ass'n, 189 Cal.Rptr. 818 (Cal. Ct. App. 1983);
      • An individual who publicly claimed to be an expert in earthquake safety and a veteran in earthquake rescue operations. Copp v. Paxton, 52 Cal.Rptr.2d 831 (Cal. Ct. App. 1996).

      Actual Malice and Negligence

      In California, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Privileges and Defenses

      California courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, and substantial truth.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      California courts have codified the fair report privilege in Cal. Civil Code §47(d) and (e). The privilege generally applies to publicly available government records, official government reports, and statements made by government officials.

      Neutral Reportage Privilege

      The California Supreme Court has not formally recognized the neutral reportage privilege. Nevertheless, several federal courts have applied the neutral report privilege in cases involved California law and there are relatively strong indications that state courts in California would apply the privilege if faced with the proper fact pattern.

      The California Supreme Court indicated a possible willingness to consider the neutral report privilege in the context of public figure defamation. In that case, which involved an allegation that the plaintiff, a private citizen, participated in the Robert Kennedy assassination when he was 21 years old, the California Supreme Court held that the neutral report privilege did not apply to cases where the plaintiff was a private figure. Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question, however, whether the neutral report privilege would apply if the defamatory statement involved a public figure.

      In addition, several lower California courts have expressed support for the privilege without directly ruling that the privilege applies. See Weingarten v. Block, 102 Cal. App. 3d 129, 148 (1980); Grillo v. Smith, 144 Cal. App. 3d 868, 872 (1983); Stockton Newspapers, Inc. v. Superior Court, 206 Cal. App. 3d 966, 981 (1988); Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 732-33 n.18 (Cal. Ct. App. 1989).

      Although their application of the privilege is not binding on California state courts, two federal courts in the state have applied the neutral reportage privilege in situations involving the following:

      • A college basketball player (ruled a public figure) who accused his coach (also deemed a public figure) of participating in payments made to the player by team boosters. Barry v. Time, Inc., 584 F. Supp. 1110, 1112 (D. Cal. 1984). The court held that there was no requirement that the person making the accusation have a reputation for "trustworthiness" for the neutral report privilege to apply.
      • The details published by a tabloid, News of the World, about the private life of a well known actor. Ward v. News Group Int'l, 733 F. Supp. 83 (D. Cal. 1990). The court emphasized that the republication occurred in a fair and accurate manner and that the tabloid published the actor's denial along with the accusation.

      Wire Service Defense

      The wire service defense generally is not recognized in California. However, one trial court in California did recognize the wire service defense in an unpublished decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court level and unpublished, other California courts are free to disregard the court's decision to apply the wire service defense.

      Statute of Limitations for Defamation

      California's statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).

      California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass'n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004).  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

      Jurisdiction: 

      Subject Area: 

      District of Columbia Defamation Law

      Note: This page covers information specific to the District of Columbia. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      According to District of Columbia law, defamation claims have four elements:

      1. the defendant made a false and defamatory statement concerning the plaintiff;
      2. the defendant published the statement without privilege to a third party;
      3. the defendant's fault in publishing the statement amounted to at least negligence; and
      4. either the statement was actionable as a matter of law irrespective of special harm or its publication caused the plaintiff special harm.

      See Jankovic v. International Crisis Group, 429 F.Supp.2d 165, 173-4 (D.D.C. 2006). The elements of a defamation claim in the District of Columbia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      In the District of Columbia, any written or printed statement that falsely accuses someone of committing a crime constitutes defamation per se. See Raboya v. Shrybman & Associates, 777 F.Supp. 58 (D.D.C. 1991). If a statement is defamation per se, the court will assume harm to the plaintiff's reputation, without further need to prove that harm.

      The District no longer allows presumed damages for defamation per se directed at public figures, following the U.S. Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007) (affirming unpublished lower court decision implying that presumed damages are no longer available for public figures). The court in El-Hadad noted that D.C. law provides for presumed damages for defamation per se directed at private figures.

      Public Figures

      Federal courts in D.C., applying D.C. law, have ruled that corporate plaintiffs are considered public figures as a matter of law in lawsuits against mass media defendants that involve "matters of legitimate public interest." See Oao Alfa Bank v. Center for Public Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). The opinions of federal district courts are not definitive on the meaning of D.C. law, but other cases might choose to follow this rule. Should they decide to do so, then any corporation -- no matter how large -- would have to prove actual malice in order to prevail in such cases. There is no reason to believe this rule would not apply to lawsuits involving citizen media defendants because the underlying rationale focuses on the characteristics of corporations, not those of the defendant in the lawsuit. 

      Actual Malice and Negligence

      In the District, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

      Privileges and Defenses

      District of Columbia courts recognize a number of privileges and defenses in the context of defamation actions, including the wire service defense, the fair report privilege, the opinion and fair comment privileges, and substantial truth.

      It is not clear whether the D.C. courts recognize the neutral reportage privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      D.C. courts recognize the the fair report privilege.  The privilege is applied broadly to statements made during proceedings before any court, agency, executive body, legislative body, and to reports of any official proceeding or action taken by a government officer or agency.

      Wire Service Defense

      D.C. recognizes the wire service defense, which precludes defamation liability for speakers who republish content from wire services. D.C. also recognizes the reverse of the standard wire service defense: wire services may rely on content from reputable newspapers without being held negligent. See Winn v. UPI, 938 F.Supp. 39 (D.D.C. 1996).

      Neutral Reportage Privilege

      District of Columbia courts have not ruled definitively on the availability of the neutral reportage privilege.

      In White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990), the U.S. Court of Appeals for the D.C. Circuit noted that it had not yet recognized the neutral reportage privilege, although the court seemed to express a favorable view of it. At least one lower D.C. court has applied the privilege. See In re United Press Intern, 106 B.R. 323 (D.D.C. 1989) (news reports were immune from defamation liability under neutral reportage). In an earlier case, a federal district court held that the neutral report privilege would not apply to a case involving statements about a private figure. See Dressbach v. Doubleday & Co., 8 Media L. Rep. 1793 (D.D.C. 1982).

      Statute of Limitations for Defamation

      The District's statute of limitations for defamation is one (1) year. See D.C. Code Sec 12-301(4).

      The District has adopted the single publication rule. See Jin v. Ministry of State Secretary, 254 F.Supp. 2d 61, 68 (D.D.C. 2003). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

      In Jankovic v. International Crisis Group, 494 F.3d 1080 (D.C. Cir. 2007), the D.C. Circuit held that the single publication rule applies to statements posted on the Internet, and that the statute of limitations runs from the date of first publication absent "republication" of the allegedly defamatory statement by updating it or taking steps to expand the audience for it. While the Court of Appeals of the District of Columbia has not ruled on the issue as a matter of state law, it is likely that other D.C. courts would apply this holding. Therefore, the statute of limitations in Internet cases should run from the date of first posting, absent some modification that triggers "republication."

      Jurisdiction: 

      Subject Area: 

      Florida Defamation Law

      Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      Under Florida law, the elements of a defamation claim are:

      1. the defendant published a false statement;
      2. about the plaintiff;
      3. to a third party; and
      4. the falsity of the statement caused injury to the plaintiff.

      Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.  The elements of a defamation claim in Florida are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985), the Florida Supreme Court ruled that the state no longer recognizes presumed damages for defamation per se in lawsuits against media defendants. (Defamation "per se" refers to a legal doctrine which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff's reputation.) The CMLP is not aware of any Florida cases deciding whether a blogger or non-traditional journalist is a "media defendant" for purposes of applying this rule. In cases involving matters of purely private concern, a Florida court could still presume damages based on defamation per se. In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.

      Public and Private Figures

      Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim. The Florida Supreme Court found a police officer to be a public official where he was a "highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power." Smith v. Russell, 456 So.2d 462 (Fla. 1984). Florida courts have found that a corrections officer, an administrator of large public hospital, and even a harbormaster were public officials.

      Criminal Libel

      Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution's reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 -- which deals with anonymous defamation of individuals or religious groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).

      Actual Malice and Negligence

      In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

      Privileges and Defenses

      Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege, and the wire service defense. The Florida Supreme Court has not explicitly recognized the neutral reportage privilege, but lower court cases have recognized it.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Neutral Reportage Privilege

      The Florida Supreme Court has not formally recognized the neutral reportage privilege, but there are indications that Florida would recognize it. Two lower court cases have endorsed the privilege. See Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1044 (Fla. 1st DCA 1983); Huszar v. Gross, 468 So. 2d 512, 515 (Fla. 1st DCA 1985). Both cases recognized the privilege even in instances where the plaintiff is a private figure. The Court of Appeals for Florida's Third District spoke favorably of these cases. See Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc, 472 So. 2d 517, 518 (Fla. 3rd DCA 1985).

      Statute of Limitations for Defamation

      Florida's statute of limitations for defamation is two (2) years. See Fla. Stat. § 95.11(4)(g).

      Florida applies the single publication rule. See Fla. Stat. § 770.07. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      To our knowledge, Florida appellate courts have considered the application of the single publication rule to the Internet on only one occasion, in Rudloe v. Karl, No. 1D03-4651 (Fla. Dist. Ct. App. Nov. 5, 2004). In that opinion, the District Court of Appeal for the First District wrote that the single publication rule applies to Internet content, and that the statute of limitations does not reset every time that a new user accesses allegedly defamatory material. However, after a rehearing, this opinion was withdrawn by the court and superseded by an opinion that did not address statute of limitations issues. Accordingly, while the original opinion might suggest the manner in which Florida courts would apply the single publication rule to online speech, the opinion itself has no precedential value and should not be cited in court.  If you are aware of any additional Florida cases that address the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      Georgia Defamation Law

      Note: This page covers information specific to Georgia. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      In Georgia, the elements of a defamation claim are:

      1. a false statement about the plaintiff;
      2. communication of the statement to a third party in the absence of a special privilege to do so;
      3. fault of the defendant amounting at least to negligence; and
      4. harm to the plaintiff, unless the statement amounts to per se defamation. See Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

      These elements of a defamation claim in Georgia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      Georgia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Under Georgia statutes, a statement is defamatory per se if it:

      • charges another person with a crime punishable by law;
      • charges another person “with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;” or
      • refers to the trade, office, or profession of another person, and is calculated to injure him.

      See Ga. Code Ann. §51-5-4.

      Georgia courts have interpreted defamation per se to include statements “that one is guilty of a crime, dishonesty or immorality,” Eidson v. Berry, 415 S.E.2d 16, 17 (Ga. Ct. App. 1992), or that accuse one “of having sexual relations with any person other than his wife,” Baskin v. Rogers, 493 S.E.2d 728, 730 (Ga. Ct. App. 1997). The courts have narrowed the criteria for defamation of a business person by adopting the “single instance test.” A plaintiff has no grounds for a complaint if the alleged defamatory statement refers to only a single instance of mistake or ignorance on the part of a business or professional person. See Crown Andersen, Inc. v. Georgia Gulf Corp., 554 S.E.2d 518, 521 (Ga. Ct. App. 2001).

      Who Can Sue For Defamation

      Georgia recognizes no “right of action for defamation of a deceased person.” Saari v. Gillett Communications of Atlanta, Inc., 393 S.E.2d 736, 736 (Ga. Ct. App. 1990). However, if a defamation plaintiff dies after suit is filed, the representative of the deceased plaintiff's estate may continue the lawsuit. Johnson v. Bradstreet Co., 13 S.E. 250, 252 (Ga. 1891).

      Limited-Purpose Public Figures

      Georgia follows Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in defining public figures. The Georgia Court of Appeals refined its test for limited-purpose public figures in the well-known case of Richard Jewell, the security guard during the 1996 Olympics in Atlanta who was first hailed as a hero for discovering a knapsack bomb in Centennial Olympic Park, but later was investigated by the FBI as a possible suspect in placing the bomb. In the court's view, by granting a series of media interviews in which he attempted to influence public perception of security at the park, Jewell became a voluntary limited-purpose public figure for purposes of his libel suit against an Atlanta newspaper. See Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175, 185 (Ga. Ct. App. 2001).

      The Georgia Court of Appeals adopted a three-part test for determining who is a limited-purpose public figure: “the court must [1] isolate the public controversy, [2] examine the plaintiff's involvement in the controversy, and [3] determine whether the alleged defamation was germane to the plaintiff's participation in the controversy.” Atlanta Journal-Constitution v. Jewell, 555 S.E.2d at 183.

      Actual Malice and Negligence

      In Georgia,  a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards. 

      Privileges and Defenses

      Georgia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges. The CMLP has not identified any cases in Georgia concerning the wire service defense. It is unclear whether Georgia courts recognize the neutral reportage privilege.

      Most of the privileges and defenses to defamation in Georgia can be defeated if the plaintiff proves that the defendant acted with actual malice.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      Fair and accurate reports of legislative and court proceedings are among the privileged communications protected by statute in Georgia. See Ga. Code Ann. §51-5-7(5), (6). This privilege also extends to fair, accurate, and impartial reports about administrative agency proceedings. Morton v. Stewart, 266 S.E.2d 230, 233 (Ga. Ct. App. 1980). Georgia courts have generally, but not universally, held that the fair report privilege is qualified and can be defeated by proof of actual malice. Ga. Code Ann. §51-5-7(8) also provides a qualified privilege for truthful reports of information received from arresting officers or police authorities.

      Neutral Reportage Privilege

      Georgia courts have mentioned the "neutral reportage privilege" a handful of times, but they sometimes appear to confuse it with the fair report privilege and the statutory privilege for reporting information received from arresting officers or police authorities. At other times, Georgia courts use the term "neutral reportage" to describe whether a report is "fair and honest" for purposes of the fair report privilege. Because of this confusion, it is difficult to say whether Georgia recognizes the privilege as it is usually understood.

      Wire Service Defense

      The CMLP has not identified any cases in Georgia concerning the wire service defense. If you are aware of any Georgia cases, please notify us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation is one (1) year. Ga. Code Ann. § 9-3-33.

      Georgia has adopted the single publication rule. See Carroll City/County Hosp. Auth. v. Cox Enters., 256 S.E.2d 443, 444 (Ga. 1979). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      In McCandliss v. Cox Enterprises, 595 S.E.2d 856 (Ga. Ct. App. 2004), a Georgia appeals court held that the single publication rule applied to the posting of news articles on a newspaper's website. If other Georgia courts follow the McCandliss decision, the statute of limitations in Internet cases would begin to run from the date of first posting, absent a modification that triggers "republication."

      Jurisdiction: 

      Subject Area: 

      Illinois Defamation Law

      Note: This page covers information specific to Illinois. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      Under Illinois law, the elements of a defamation claim are:

      1. the defendant made a false statement about the plaintiff;
      2. there was an unprivileged publication to a third party;
      3. fault by the defendant amounting to at least negligence; and
      4. the publication damaged the plaintiff.

      The elements of a defamation claim in Illinois are for the most part similar to the elements listed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      Illinois recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Illinois, a statement that does any of the following things amounts to defamation per se:

      • accuses the plaintiff of committing a crime;
      • indicates that the plaintiff is infected with a loathsome communicable disease;
      • indicates that the plaintiff is unable to perform or lacks integrity in performing his or her employment duties;
      • attributes to the plaintiff a lack of ability or otherwise harms the plaintiff in his or her profession; or
      • accuses the plaintiff of engaging in adultery or fornication.

      Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).

      Actual Malice and Negligence

      Illinois courts apply a unique "reasonable grounds" standard of negligence in defamation cases brought by  private figures. This standard requires that the defendant either knew the publication was false or believed the publication was true but "lacked reasonable grounds for that belief." Troman v. Wood, 62 Ill.2d 1984, 299 (Ill. 1975). Thus, the Illinois negligence test resembles a slightly more lenient "actual malice" test. See the general page on actual malice and negligence for details on the terminology and standards referenced here.

      Privileges and Defenses

      Illinois courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, substantial truth, and the opinion and fair comment privileges. Illinois has neither recognized nor rejected the wire service defense and the neutral reportage privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. See Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825 (Ill. 2006).

      Fair Report Privilege

      In Illinois, the fair report privilege covers reports of official government proceedings and information contained in public records. This includes court proceedings and matters contained in court documents, as well as police reports, verbal statements by governmental officials in their official capacities, and things like marriage and divorce records, birth and death records, and property records. The privilege protects you if your report fairly and accurately reflects the official information. As noted, the privilege is absolute, and cannot be defeated by a finding of malice or actual malice.

      Neutral Reportage Privilege

      The Supreme Court of Illinois has not recognized or rejected the neutral reportage privilege. Lower courts in Illinois do not agree on whether Illinois law recognizes the privilege. Therefore, its status remains uncertain.

      Wire Service Defense

      Illinois has only addressed the wire service defense in one case, Kapetanovic v. Stephen J. Productions, Inc., 30 Media L. Rep. 1786 (N.D.Ill. 2002), but that case is not binding legal authority because it involved a federal court. It is worth noting, however, that the Illinois federal court recognized and applied the defense in that case and Illinois state courts may decide to follow suit.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Illinois is one (1) year. See 735 ILCS 5/13-201

      Illinois has adopted the single publication rule by statute. See 740 ILCS 165/1. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      The CMLP could not locate any cases in Illinois that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Illinois cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      Indiana Defamation Law

      Note: This page covers information specific to Indiana. For general information concerning defamation, see the Defamation section of this guide.

      Elements of Defamation

      Under Indiana law, the elements of defamation claim are:

      1. a communication with defamatory imputation;
      2. malice;
      3. publication; and
      4. damages.

      Bochenek v. Walgreen Co., 18 F.Supp.2d 965 (N.D.Ind. 1998).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Indiana are for the most part similar to the elements listed in the general Defamation section, with the following exceptions.

      Defamation Per Se

      In Indiana, a communication constitutes defamation per se if it imputes:

      • criminal conduct;
      • a loathsome disease;
      • misconduct in a person's profession or occupation; or
      • sexual misconduct.

      Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App.2001). In an Indiana claim involving defamation per se, the plaintiff does not need to prove actual damages.

      Private Figures

      Indiana applies the "actual malice" standard of fault in defamation claims involving private figures if the disputed statements are newsworthy or involve matters of public concern. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 130 (Ind. 2006). Most states apply a negligence standard in defamation claims involving public figures. See the general page on actual malice and negligence for details on this standard.

      Privileges and Defenses

      Indiana courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Indiana has not recognized or rejected the neutral reportage privilege and has not yet considered the wire service defense.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Neutral Reportage Privilege

      Indiana has not explicitly recognized or rejected the neutral reportage privilege. The sole case law on the issue is a 7th Circuit decision that upheld an unpublished Indiana federal court judgment but declined to address the issue of neutral reportage. Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986). The federal trial court had recognized and applied the privilege, but the 7th Circuit affirmed on other grounds.

      Wire Service Defense

      It appears that no Indiana case has considered the wire service defense. If you are aware of any Indiana cases, please notify us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Indiana is two (2) years. See Indiana Code sec. 34-11-2-4.

      Indiana is unusual in that its courts have held that the statute of limitations begins when the "damage" of the statement is "susceptible of ascertainment," rather than when the statement was published. Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.

      Indiana has no case law on whether or not the single publication rule applies. If you are aware of any Indiana cases that acknowledge the single publication rule in the Internet context, please notify us.  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      Jurisdiction: 

      Subject Area: 

      Massachusetts Defamation Law

      Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.

      Elements of Defamation

      In Massachusetts, the elements of a defamation claim are:

      1. a false and defamatory communication
      2. of and concerning the plaintiff which is
      3. published or shown to a third party.

      Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.   These elements of a defamation claim in Massachusetts are similar to the elements listed in the general Defamation section, with the following exceptions:

      Defamation Per Se

      Massachusetts has abolished the separate category of defamation per se at least in part. Under state common law, any libel is actionable per se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974). This means that plaintiffs do not need to plead or prove economic losses in order to prevail on libel claims.

      However, Massachusetts courts have continued to discuss defamation per se. It appears the state might still recognize libel per se when determining whether a statement "could damage the plaintiff's reputation in the community" -- which is part of the consideration of whether the statement is defamatory. Albright v. Morton, 321 F. Supp. 2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass statements that charge the plaintiff with a crime, that allege the plaintiff has certain diseases, or that may prejudice the plaintiff's profession or business. Morton, 321 F. Supp. at note 3.

      It also appears that Massachusetts still recognizes defamation per se in cases involving slander rather than libel. Ravnikar v. Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to arise in an Internet-based defamation action because online defamation almost always involves libel law.

      Public Officials

      In Massachusetts, any elected official holding public office is considered a public official for the purposes of defamation. Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means that any elected official in public office -- no matter how small the scope of her duties -- must prove that the defendant acted with actual malice in order to prevail on a defamation claim. The Lane court found that an elected town representative was a public official though the representative's duties were limited to meeting with the rest of a 104-member committee once a year to vote on various town issues.

      Criminal Libel

      Massachusetts recognizes criminal libel as a common law offense, though it does not have a criminal libel statute. Commonwealth v. Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be any Massachusetts criminal libel case law since the Supreme Court's 1966 decision in Ashton v. Kentucky, which invalidated the Kentucky common law crime of criminal libel as unconstitutionally vague and overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the Court's decision in Ashton, many states have repealed their criminal libel statutes or ceased to recognize the common law crime.

      Privileges and Defenses

      Massachusetts courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the wire service defense, and the fair report privilege. Massachusetts has neither recognized nor rejected the neutral reportage privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Substantial Truth

      As a general matter, if a statement is substantially true, it cannot be actionable as defamation. See Milgroom v. News Group Boston, 412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however, "truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92. This potential limitation on the truth defense is unlikely to be constitutional and, indeed, Massachusetts courts have held that it does not apply to cases involving public-figure or public-official plaintiffs or cases brought against media defendants that deal with matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6 (1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134 (1998). No court has applied the statute in a case brought by a private plaintiff that involves issues not of public concern.

      Neutral Reportage Privilege

      Massachusetts has not recognized or rejected the neutral reportage privilege. Reilly v. Associated Press, 797 N.E.2d 1204 (Mass. App. Ct. 2003).

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.

      Massachusetts has adopted the single publication rule, defining publication as the time when a work is "first made widely available to the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288 (Mass. Super. Ct. 2004). The Abate court also explicitly extended the single publication rule to statements published on the Internet. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      Jurisdiction: 

      Subject Area: 

      Michigan Defamation Law

      Note: This page covers information specific to Michigan. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      In Michigan, the elements of a defamation claim are:

      1. a false and defamatory statement concerning the plaintiff;
      2. an unprivileged publication to a third party;
      3. fault amounting at least to negligence on the part of the publisher; and
      4. either actionability of the statement irrespective of special harm (defamation per se) or the existence of actual harm caused by the publication.

      These elements of a defamation claim in Michigan are similar to the elements listed in the general Defamation section, with the following exceptions:

      Defamation Per Se

      Defamation per se exists if the communication is false and imputes a criminal offense or lack of chastity. Unlike in many other states, defamation regarding one's business or profession is not defamation per se in Michigan. See George v. Senate Democratic Fund, 2005 WL 102717 (Mich. Ct. App. 2005); Pierson v. Ahern, 2005 WL 1685103 (Mich. Ct. App. 2005).

      Public Figures and Officials

      Under Michigan law, a public official is a person whose position is of such apparent importance that the public has an independent interest in his qualifications or performance "beyond the general public interest in the qualification and performance of government employees." Peterfish v. Frantz, 168 Mich. App. 43, 52 (1988). A plaintiff must prove actual malice to recover for any subject matter that touches upon the official's fitness for office. A public figure is "a person who by his accomplishments, fame or mode of living, or by adopting a calling which gives the public a legitimate interest in his activities, affairs, and character, has become a public personage." Arber v. Sahlin, 382 Mich. 300, 305 n.4 (1969).

      In Michigan, the following persons have been considered public officials or figures:

      • Law enforcement officials including a sheriff, a deputy sheriff, a university police officer, a bailiff, chief probation officer, the chief of the criminal section of the city law department;

      • Municipal figures including a county treasurer, a county engineer, a municipal law director, a city council member, members of the Board of Education; and

      • Owners and executives of prominent businesses.

      Limited-Purpose Public Figure

      A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy. However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. A court will look to the nature and extent of the individual's participation in the controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991).

      In Michigan, the following persons have been considered limited-purpose public figures:

      • The owner of a private art school was a public figure for the limited range of issues relating to the art school, its administration, and its problems;

      • A wife of a public official who injected herself into a public controversy made her a public figure for purpose of the controversy bolstered by the fact she was married to a public figure.

      • A retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at School Board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the Board.
      See the general page on actual malice and negligence for details on these standards.

      Privileges and Defenses

      Michigan courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, opinion and fair comment privileges, wire service defense and the fair report privilege. Michigan has declined to adopt the neutral reportage privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      In Michigan, the fair report privilege has been codified in Mich. Comp. Law § 600.2911(3) (1961), which provides an absolute privilege against liability for fair and true reports of public and official proceedings. A report is fair and true if the "gist" is substantially true.

      Neutral Reportage Privilege

      The neutral reportage privilege is not recognized in Michigan. The Michigan Court of Appeals declined to adopt the privilege stating "the press is adequately protected by the burden of proof" that the publication of a statement was made with actual malice, that is, knowing that it is false or acting with a reckless disregard for the statement's truth or falsity. Postill v. Booth Newspapers, Inc., 325 N.W.2d 511, 518 (Mich. Ct. App. 1982). Michigan's Supreme Court has made only passing reference to neutral reportage, referring to the doctrine as "undefined." Rouch v. Enquirer & News, 487 N.W.2d 205, 208 n.3 (Mich. 1992).

      Wire Service Defense

      Michigan recognizes the wire service defense. See Howe v. Detroit Free Press, Inc., 555 N.W.2d 738 (Mich. App. Ct. 1996). The court in Howe offers a nice definition of the wire service defense in Michigan: "when a local media organization receives a wire service release, it has a duty to read the release to ensure that the face of the story itself does not contain any inconsistencies. The local media organization also has a duty to refrain from publishing the news story if the news organization knows the story is false or if the release itself contains unexplained inconsistencies. The local media organization does not have a duty, however, to independently verify the accuracy of the wire service release." Howe, 555 N.W.2d at 740-41.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Michigan is one (1) year. Mich. Comp. Law § 600.5805(7) (1961).

      Each publication typically amounts to a separate cause of action in Michigan. See Grist v. Upjohn, 2 Mich. App. 72 (1965); Celley v. Stevens, 2004 WL 134000 (Mich. Ct. App. 2004). Michigan courts have not decided whether the single publication rule applies in Michigan. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

      Jurisdiction: 

      Subject Area: 

      Missouri Defamation Law

      Note: This page covers information specific to Missouri. For general information concerning defamation, see the Defamation section of this guide. 

      Elements of Defamation

      The elements of defamation in Missouri are:
      1. publication
      2. of a defamatory statement
      3. that identifies the plaintiff
      4. that is false
      5. that is published with the requisite degree of fault, and
      6. damages the plaintiff's reputation

      Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc). 

      The publication requirement is simply the communication of defamatory matter to a third person. An exception to the publication requirement exists for slander actions in Missouri where a person who utters defamatory matters intends, or has reason to suppose, that in the ordinary course of events the matter will come to knowledge of some third person. Mauzy v. Mex. Sch. Dist., 878 F. Supp. 153, 157 (E.D. Mo. 1995), citing Neighbors v. Kirksville College, 694 S.W.2d 822, 824 (Mo. Ct. App. 1985). One who republishes defamatory facts is liable for that publication. Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953). There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party - not you or your employee or someone acting under your direction - posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      These elements of a defamation claim in Missouri are similar to the elements listed in the general Defamation section, with the following exceptions:

      Defamation Per Se/Per Quod

      The Missouri Supreme Court case of Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc) eliminates the defamation per se/per quod distinction. In that case, the court abandoned the classifications of defamation per se and per quod, holding that "plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases." Id. at 313. 

      Defamatory Meaning 

      By statute, it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. Mo. Rev. Stat. § 537.110 (2011).

      In 1993, a false allegation of homosexuality was held to be defamatory. Nazeri at 312. It is not clear whether this would still be actionable now.

      In order to find that a publication is defamatory, it must "be unequivocally so" and the words "should be construed in their most innocent sense." Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966). In Ampleman v. Schweppe, 972 S.W.2d 329 (Mo. Ct. App. 1998), the court stated that "if a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law." Id. at 333.

      Of and Concerning the Plaintiff

      Even if the plaintiff is readily identifiable in a particular publication, the plaintiff cannot sue for defamation unless the libelous portion of the publication is directed at him. May v. Greater Kansas City Dental, 863 S.W.2d 941, 945 (Mo. Ct. App. 1993).  

      Actual Malice

      In order to recover for defamation, a public official/figure is required to show that the defendant acted with actual malice. Actual malice requires a showing that the libelous statements were published with actual knowledge of falsity or in reckless disregard as to whether the statement as true or not. The Missouri Supreme Court has equated recklessness with disregard of the truth with subjective awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Glover v. Herald Co. 549 S.W.2d 858, 862 (Mo. 1977) (en banc).

      Application of the actual malice standard in defamation cases in Missouri is not limited to statements regarding public officials' performance of official acts. A public figure's private conduct is, in some cases, a matter of public concern. Westhouse v. Biondo, 990 S.W.2d 68 (Mo. Ct. App. 1999).

      Missouri cases have applied constitutional fault principles to statements made by non-media defendants, as well as those made by media defendants. Ramacciotti v. Zinn, 550 S.W.2d 217, 224 (Mo. Ct. App. 1987); McQuoid v. Springfield Newspapers, Inc., 502 F. Supp 1050, 1054 n.3 (W.D. Mo. 1980). 

      See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Private Figure Standard

      In Missouri, a private figure must show libelous statements were published by a defendant "at fault." The Missouri Supreme Court has interpreted the U.S. Supreme Court's ruling in Gertz v. Robert Welch, Inc., as stating that the requisite degree of fault in a private figure defamation case is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W. 3d 62, 70 (Mo. 2000) (en banc). 

      Damages 

      In a ruling rejecting the distinction between defamation per se and per quod (see above), the Missouri Supreme Court seems to have abandoned the doctrine of presumed damages. Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc). "By allowing presumed damages for certain words but precluding actual damages for other words without the additional proof of special damages, we believe this rule of the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI [i.e., the "Missouri Approved Instructions," the standard jury instructions used in Missouri courts] 23.01(1) and 23.01(2)." Nazeri at 313. See also Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003); Bauer v. Ribaudo, 975 S.W.2d 180, 182-83 (Mo. Ct. App. 1997).  

      Recent Missouri legislation says that punitive damages in any tort case may not exceed $500,000 or five times the net amount of any judgement awarded to the plaintiff against the defendant, whichever is greater. Mo. Rev. Stat. § 510.265 (2011). 

      The Missouri Supreme Court has held that a defamation plaintiff must prove impairment to reputation in order to recover any damages for defamation and that emotional distress alone will not suffice. Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003). 

      Other Issues

      Missouri has no criminal libel statute. 

      Privileges and Defenses

      Missouri courts recognize a number of privileges and defenses in the context of defamation cases, including substantial truth, the wire service defense, the fair reportage privilege, and opinion and fair comment privileges.

      Missouri has not adopted the neutral reportage doctrine officially, although some cases show some recognition of a more limited privilege. Englezos v. Newspress & Gazette Co. 981 S.W.2d 25, 32 (Mo. Ct. App. 1998). The Eighth Circuit has suggested adherence to the neutral reportage doctrine. Price v. Viking Penguin Inc., 881 F.2d 1426, 1434, 1444 (8th Cir. 1989).

      Substantial Truth

      At common law, truth was considered a complete defense to libel (i.e., the defendant would have the burden to prove truth). Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953); Bartulica v. Pasculdo, 411 F. Supp 392, 397 (W.D. Mo. 1976).

      Now falsity must be proven by the plaintiff, at least in cases where the defendant is a member of the media. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). "Under the controlling constiutional standards, public officials, public figures and private persons using media defendants [for libel] must establish that the defendant published a false statement of fact." Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980). 

      Slight inaccuracies of expression are immaterial if the defamatory charge is true in substance. Brown v. Biggs, 569 S.W.2d 760, 762 (Mo. Ct. App. 1978).

      Wire Service Defense

      Missouri recognizes that a newspaper has the right to reply upon and to republish information obtained from "reputable and properly-regarded-as reliable news services" where (1) the matters republished are of public significance and occur many miles away and (2) the reporter did not act with actual malice. Walker v. Pulitzer Publ'g Co., 271 F.Supp. 364 (E.D. Mo. 1967), aff'd, 394 F.2d 800 (8th Cir. 1968). 

      Fair Reportage Privilege

      Missouri has adopted this privilege in the exact language provided in the Restatement of Torts (Second) § 611:

      The publication of defamatory matter concerning another in a report or an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

      "Actual malice" is irrelevant under the Section 611 privilege. The privilege fails only when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broad. Co., 706 S.W.2d 508, 511 (Mo. Ct. App. 1986).

      Opinion

      The Missouri Supreme Court, considering the U.S. Supreme Court's holding in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),rejected a blanket defense for protected opinion and established instead the following test: 

      "The test to be applied to ostensible 'opinion' is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. ...The issue of falsity relates to the defamatory facts implied by a statement -- in other words, whether the underlying statement about the plaintiff is demonstrably false... But neither 'imaginative expression' nor 'rhetorical hyperbole' is actionable as defamation."

      Nazeri at 314 (citations omitted). Nevertheless, a Missouri appellate court has since held that generally any statement preceded by a phrase such as "it is my position" or "it is my belief" or other cautionary phrases are, as a matter of law, opinion. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). "Put plainly, it is impossible to interpret statements preceded by such cautionary lanugage as positing a verifiable proposition, and verifiability is the crux of the fact/opinion distinction in defamation law."  Pape at 380-81. The Pape court also held that "[a] statement must be verifiable at the time it is issued in order to be one of fact." Id. at 381.

      In State ex. rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005), the Missouri Court of Appeals, while recognizing that the U.S. Supreme Court "has rejected the notion that there is a wholesale defamation exception for anything that might be labeled opinion" as a matter of federal constitutional law, held that "a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff's conduct and used pejorative statements or vituperative language to express this disapproval. ... 'Courts should also examine the statements themselves to determine whether they are too imprecise.'" Id. at 155, quoting Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).

      See the general page on fair comment and opinion for details on the standards and terminology mentioned in this subsection.

      Other Privileges

      Missouri follows the "witness immunity" rule that witness statements made in litigation are absolutely privileged from defamation actions. Mershon v. Beasley, 994 F.2d 449, 454 (8th Cir. 1993).

      There is also an "intra-corporate immunity" rule in Missouri where "communications between officers or employees of a corporation in the regular course of business, or between different offices of the same corporation" are not publications for defamation purposes. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo. 1963); see also Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo. Ct. App. 1990). Communication by a corporation's officers or supervisors to non-supervisory employees constitute a publication for purposes of a defamation. Snodgrass v. Headco Indus. Inc., 640 S.W.2d 147 (Mo. Ct. App. 1982). However the intra-corporate immunity rule does not appear to be applicable to communications outside of the corporate context, for example partnerships.

       

      Statute of Limitations for Defamation

      An action for libel or slander that is first published in Missouri must be commenced within two years. Mo. Rev. State § 516.140 (2011).

      Jurisdiction: 

      Subject Area: 

      New Jersey Defamation Law

      Note: This page covers information specific to New Jersey. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      In New Jersey, the elements of a defamation claim are:

      1. a false statement about the plaintiff;
      2. communication of the statement to a third party;
      3. fault of the defendant amounting at least to negligence; and
      4. damages suffered by the plaintiff.

      See DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004). These elements of a defamation claim in New Jersey are similar to the elements listed in the general Defamation Law section, with the following exceptions:

      Public and Private Figures

      New Jersey follows the U.S. Supreme Court's decision in Rosenblatt v. Baer, 383 U.S. 75 (1966), in determining who is a public official for purposes of defamation law. Under this test, the public official designation applies to "those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Costello v. Ocean County Observer, 643 A.2d 1012, 1021 (N.J. 1994) (quoting Baer). Reading this test expansively, New Jersey courts have consistently held that police officers are public officials. Other examples of public officials include a former school district athletic director, a tax assessor, a building inspector, an incumbent mayor.

      New Jersey courts have a two-part test for deciding who is a limited-purpose public figure. First, the defamatory statement must involve a public controversy, namely a real dispute with an outcome that “affects the general public or some segment of it.” See McDowell v. Paiewonsky, 769 F.2d 942, 948 (3d Cir. 1985). Second, the court must consider “the nature and extent of plaintiff's involvement in that controversy.” See McDowell, 769 F.2d at 948. The following individuals, among others, have been held to be limited-purpose public figures in New Jersey:

      • A candidate for a condominium board of directors, because his candidacy thrust him into the public eye, see Gulrajaney v. Petricha, 885 A.2d 496, 505 (N.J. Super. Ct. App. Div. 2005);
      • A lawyer representing the New Jersey School Boards Association, at a time when the association's insurance problems generated widespread and justifiable media attention, see Schwartz v. Worrall Publ'ns, 610 A.2d 425, 428-29 (N.J. Super. Ct. App. Div. 1992); and
      • Land use applicants, because their construction project were fairly and reasonably the subject of public interest, see LoBiondo v. Schwartz, 733 A.2d 516, 526 (N.J. Super. Ct. App. Div. 1999).

      Actual Malice and Negligence

      When a private figure plaintiff sues for defamation over statements of purely private concern (i.e., not related to a matter of legitimate public concern), New Jersey courts require the plaintiff to show that the defendant was at least negligent. In cases involving matters of legitimate public concern, the plaintiff must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. Public officials, all-purpose public figures, and limited-purpose public figures also must prove actual malice. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Privileges and Defenses

      New Jersey courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges.

      In addition, New Jersey statutes recognize a privilege for cable television broadcasters who complying with their obligations under any State or Federal law, regulation, or policy requiring that broadcast services be made available to members of the public. See N.J. Stat. Ann. § 48:5A-50.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      The fair report privilege protects republishing “reports of defamatory statements made in judicial and other official proceedings,” in the interest that information from official proceedings be made available to the public. Costello v. Ocean County Observer, 643 A.2d 1012, 1018 (N.J. 1994). The report need not be “exact in every immaterial detail”, only “substantially correct.” However, a publisher who omits exculpatory language from the official report and thereby conveys an erroneous impression will lose the privilege.

      For example, the privilege will cover the publication of official statements regarding police investigations, issued by police department heads and county prosecutors, unless the plaintiff can prove actual malice in the publication. See N.J. Stat. Ann. § 2A:43-1.

      Neutral Reportage Privilege

      New Jersey courts do not recognize a neutral reportage privilege. However, the extensive protections available under the New Jersey fair report privilege are analogous to a neutral reportage privilege. See Costello, 643 A.2d at 1028 (N.J. 1994) (O'Hern, J., concurring).

      Wire Service Defense

      The CMLP has not identified any cases in New Jersey concerning the wire service defense.

      Statute of Limitations for Defamation

      New Jersey has a one (1) year statute of limitations for defamation. See N.J.S.A. 2A:14-3.

      New Jersey courts have adopted the single publication rule. Barres v. Holt, Rinehart & Winston, Inc., 378 A.2d 1148, 1151 (N.J. 1977). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      A New Jersey Superior Court has held that the single publication rule applies to Internet publications. See Churchill v. State, 876 A.2d 311, 319 (N.J. Super. Ct. App .Div. 2005). If other New Jersey courts follow the Churchill case, the statute of limitations should run from the date of first posting, unless more than merely technical changes are made to the website, triggering “republication.”

      Jurisdiction: 

      Subject Area: 

      New York Defamation Law

      Note: This page covers information specific to New York. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      Under New York law, the elements of a defamation claim are:

      1. a false statement;
      2. published to a third party without privilege or authorization;
      3. with fault amounting to at least negligence;
      4. that caused special harm or defamation per se.

      See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999). These elements of a defamation claim in New York are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

      Public and Private Figures

      New York courts rely heavily on the "vortex" notion of a limited-purpose public figure. See James v. Gannett Co., Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention."). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). In New York, such figures have included candidates for public office, restaurants (for the purpose of food reviews), and religious groups.

      Actual Malice and Negligence

      When the plaintiff in a defamation lawsuit is a private figure and the allegedly defamatory statements relate to a matter of legitimate public concern, the plaintiff must prove that the defendant acted "in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, 38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar than negligence but lower than actual malice, focuses on an objective evaluation of the defendant's actions rather than looking at the defendant's state of mind at the time of publication.

      At least one court has found that the same standard of fault applies to citizen or non-media defendants where the allegedly defamatory statements relate to a matter of legitimate public concern. See Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d Dep't 1985), aff'd 67 N.Y.2d 778 (N.Y. 1986) (no liability for letter to the editor unless writer was "grossly irresponsible").

      In cases brought by private figure plaintiffs involving statements not related to a matter of legitimate public concern, New York courts apply a negligence standard.

      To determine whether statements relate to a matter of legitimate public concern, New York courts view the allegedly defamatory statements in context of the writing as a whole. They ask whether the matter can be "fairly considered as relating to any matter of political, social, or other concern of the community" and distinguish this broad category of newsworthy matters from "mere gossip and prurient interest." Overall, the test is deferential to the reporter's judgment about whether a matter is of legitimate public concern. See Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).

      Privileges and Defenses

      New York courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, substantial truth, and the wire service defense. New York has not explicitly recognized or rejected the neutral reportage privilege.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice.

      Fair Report Privilege

      New York has codified the fair report privilege into law. N.Y. Civ. Rights § 74. Under the statute, speakers cannot be held liable for giving a "fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." A report is "fair and true" if it is substantially accurate.

      Wire Service Defense

      New York recognizes a privilege that is similar to the wire service defense but explicitly extends protection to content originating from other sources in addition to wire services. Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will not hold republishers liable for reproducing defamatory content unless the republisher had or should have had "substantial reasons" to question the content's accuracy or the original speaker's good faith and reporting practices. See Karaduman v. Newsday, Inc., 51 N.Y.2d 531 (N.Y. 1980). Because courts applying these principles have dealt exclusively with traditional media entities such as newspapers and book publishers -- both as publishers and republishers -- it is not clear whether this privilege would apply to online speakers such as bloggers and citizen media websites.

      Neutral Reportage Privilege

      The status of the neutral reportage privilege in New York is not settled. The New York Court of Appeals has neither recognized nor rejected the privilege, and the lower courts disagree on whether it is part of New York law.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in New York in one (1) year. See N.Y. C.P.L.R. 215(3).

      New York has adopted the single publication rule. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      The single publication rule applies to the Internet in New York, with the statute of limitations running from the time the defamatory content first appears online. "Republication" of the allegedly defamatory content will restart the statute of limitations. A "republication" occurs upon "a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition.'" Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). The New York Court of appeals has indicated that altering the allegedly defamatory content may trigger republication, and a lower court has held that moving web content to a different web address triggered republication. See Firth v. State, 306 A.D.2d 666 (N.Y. App. Div. 2003).

      Jurisdiction: 

      Subject Area: 

      North Carolina Defamation Law

      Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      The elements of a defamation claim in North Carolina are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

      Defamation Per Se

      North Carolina has a broad definition of libel per se. This term refers to statements so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In North Carolina, a statement that does any of the following things amounts to libel per se:

      • charges that a person has committed an infamous crime;
      • charges a person with having an infectious disease;
      • tends to impeach a person in that person's trade or profession; or
      • otherwise tends to subject one to ridicule, contempt, or disgrace.

      This last category of libel per se is quite broad and is not recognized by most other states.

      Actual Malice and Negligence

      In North Carolina, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Privileges and Defenses

      North Carolina courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. The status of the wire service defense and the the neutral reportage privilege is unsettled.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act. It is not clear whether actual malice defeats the fair report privilege in North Carolina.

      Fair Report Privilege

      In North Carolina, the fair report privilege protects accurate reports of government proceedings and public records.  Among other things, the privilege applies to court proceedings and information contained in court documents. It also extends to reports of arrests and the charges upon which the arrests were based. See LaComb v. Jacksonville Daily News, 543 S.E.2d 219, 221 (N.C. Ct. App. 2001).  To take advantage of the privilege, your report must be a "substantially accurate acount." It is not clear whether a plaintiff can defeat the fair report privilege by proving that the defendant acted with actual malice.

      Neutral Reportage Privilege

      The CMLP located no North Carolina cases addressing the neutral reportage privilege. If you know of any cases, please contact us.

      Wire Service Defense

      One North Carolina appeals court has recognized the wire service defense, but did not elaborate on its scope. See McKinney v. Avery Journal, Inc., 393 S.E.2d 295 (N.C. Ct. App. 1990).

      Statute of Limitations for Defamation

      The statue of limitations for defamation in North Carolina is one (1) year. See N.C. Gen. Stat. § 1-54.

      The CMLP has identified no North Carolina cases addressing whether the state follows the single publication rule, either online or off. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. If you are aware of any North Carolina cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      Ohio Defamation Law

      Note: This page covers information specific to Ohio. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      The elements of a defamation claim in Ohio are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

      Defamation Per Se

      Ohio recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Ohio has a broad definition of defamation per se. In contrast to most states, which limit defamation per se to three or four specific categories of statements, Ohio defines the term as any statement that "reflects upon the character of [the plaintiff] by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or profession.” Becker v. Toulmin, 138 N.E.2d 391, 395 (Ohio 1956). A statement can constitute defamation per se only if it conveys its negative meaning directly, not by innuendo or implication.

      Public and Private Figures

      A public official is a government employee or official whose position has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees. See Scott v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986). Ohio courts have found law enforcement officials to be public officials, including a sheriff, a deputy sheriff, a university police officer, a bailiff, a chief probation officer, and the chief of the criminal section of a city law department. Other examples of public officials include a county treasurer, a county engineer, a municipal law director, a city council member, and members of the Board of Education.

      In defining all-purpose and limited-purpose public figures, Ohio courts follow Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). All-purpose public figures are those who have achieved pervasive fame and influence. Examples include celebrities, professional athletes, and similarly famous people.

      A limited-purpose public figure is someone who injects himself or herself into a particular public controversy. The determination of whether a particular individual qualifies as a limited-purpose public figure depends on the (1) plaintiff's access to the media; and (2) the extent to which the plaintiff, by virtue of his or her position in the community or involvement in a matter of public concern, can be said to invite public comment or attention. Examples of individuals and organizations deemed limited-purpose public figures by Ohio courts include:

      • the owner of a private art school (for purposes of discussing its administration);
      • a retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at school board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the board (for purposes of discussing his statements and conduct at a board meeting); and
      • a restaurant and its owner (for purposes of review of the restaurant).

      Actual Malice and Negligence

      In defamation suits brought by private figure plaintiffs, Ohio courts require a plaintiff to prove by clear and convincing evidence that the defendant "failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Landsdowne v. Beacon Journal Publ'g, 512 N.E.2d 979, 984 (Ohio 1987). The Ohio test is similar to an ordinary negligence standard, but the "clear and convincing evidence" standard requires the plaintiff to put forward strong evidence of negligence.

      Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

      Privileges and Defenses

      Ohio courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

      The Ohio Supreme Court has declined to recognize the neutral reportage privilege. The CMLP could identify no Ohio cases concerning the wire service defense.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party -– not you or your employee or someone acting under your direction –- posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      Ohio recognizes the fair report privilege, which is codified in two statutes, Ohio Rev. Code §§ 2317.04 and 2317.05.

      • Ohio Rev. Code § 2317.04 provides a privilege to accurate reports of state and local legislative and executive proceedings, as well reports reproducing the contents of any bill, ordinance, report, resolution, bulletin, notice, petition, or other document presented, filed, or issued in such a proceeding. A plaintiff can defeat this privilege by showing that the defendant acted with actual malice.
      • Ohio Rev. Code § 2317.05 provides a privilege to accurate reports of the return of any indictment, the issuance of a warrant, the arrest of any person accused of a crime, and the filing of any affidavit, pleading, or other document in a civil or criminal court case, as well as fair an impartial reports of the contents of these documents. A plaintiff can defeat this privilege by showing that the defendant (1) acted with actual malice, (2) failed to publish a reasonable written explanation or contradiction offered by the plaintiff, or (3) failed to publish, upon request of the plaintiff, the subsequent determination the lawsuit or case.

      To take advantage of the fair report privilege, you do not need to quote the official record verbatim, but it must be a substantially accurate report, which means the report conveys the essence of the official record.

      Neutral Reportage Privilege

      The Ohio Supreme Court has declined to recognize the neutral reportage privilege. See Young v. Morning Journal, 669 N.E.2d 1136, 1138 (Ohio 1996).

      Wire Service Defense

      The CMLP could not identify any cases concerning the wire service defense in Ohio. If you are aware of any cases, please contact us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Ohio is one (1) year. See Ohio Rev. Code § 2305.11 (1981).

      The status of the single publication rule in Ohio is not settled. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

      Jurisdiction: 

      Subject Area: 

      Pennsylvania Defamation Law

      Note: This page covers information specific to Pennsylvania. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      Although Pennsylvania courts invoke a complicated statutory definition found in 42 Pa. Cons. Stat. §§ 8341-8345 (see especially § 8343), in practice the elements of a defamation claim are similar to the elements discussed in the general Defamation Law section. However, Pennsylvania law has some characteristics that differ slightly from the general section's description of defamation law:

      Public and Private Figures

      Pennsylvania defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Pennsylvania courts include:

      • police officers;
      • public high school teachers and coaches;
      • a school board director;
      • a candidate for judge;
      • a celebrity with access to the media; and
      • a union official.

      Some examples of individuals deemed to be limited-purpose public figures by Pennsylvania courts include:

      • a locally renowned, Philadelphia-based singer who posed for as a centerfold and was extensively interviewed in an accompanying article in Playboy magazine;
      • a licensed architect and civil engineer who participated in numerous public building projects that had been the subject of public controversy; and
      • the president of an art foundation at the time the foundation's paintings went on a widely publicized international art exhibition tour.

      Some examples of individuals deemed to be private figures by Pennsylvania courts include:

      • a person who allegedly misrepresented himself as a member of the board of a non-profit organization;
      • a dentist who received public reimbursement from state funds for dental work performed on lower-income patients; and
      • an individual planning to host of a private party when a neighbor called a newspaper to complain about the party.

      Actual Malice and Negligence

      In Pennsylvania, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

      Privileges and Defenses

      Pennsylvania courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

      Pennsylvania does not recognize the the neutral reportage privilege. The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

      The Fair Report Privilege

      Pennsylvania recognizes the fair report privilege. The privilege applies to reports and summaries of information contained in government reports or discussed in government proceedings. This includes court proceedings, court records, and open meetings. It also applies to government press releases, including police press releases.

      The privilege applies to "fair and accurate" accounts of the underlying documents or proceedings. A report is fair and accurate if it is "substantially accurate." A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

      Neutral Reportage Privilege

      The Pennsylvania Supreme Court has expressly rejected the neutral reportage privilege. See Norton v. Glenn, 860 A.2d 48 (Pa. 2004).

      Wire Service Defense

      The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

      Statute of Limitations for Defamation

      Pennsylvania has a one (1) year statute of limitations for defamation. See 42 Pa. Cons. Stat. § 5523(1).

      The state has adopted the single publication rule. See 42 Pa. Cons. Stat. § 8341. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      The CMLP could not locate any cases in Pennsylvania that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Pennsylvania cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      Texas Defamation Law

      Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.

      Elements of Defamation

      In Texas, the elements of a defamation claim are

      1. publication of a statement;
      2. that was defamatory concerning the plaintiff;
      3. with the requisite degree of fault.

      WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The elements of a defamation claim are for the most part similar to the elements discussed in the general Defamation Law section, with the following clarifications:

      Public and Private Figures

      Texas law defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the general Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Texas courts include:

      • law enforcement officers including a county sheriff, a deputy sheriff, and an undercover narcotics agent with the Texas Department of Public Safety;

      • a Texas Child Protective Services specialist in charge of investigating cases of alleged child abuse and neglect and providing services for the children involved;

      • an assistant regional administrator of a branch office of the United States Securities and Exchange Commission; and

      • a court-appointed child psychologist in a child custody case who had the authority to determine visitation rights.

      Some examples of individuals deemed to be limited-purpose public figures by Texas courts include:

      • a candidate for city counsel, because he thrust himself into the middle of a public controversy;

      • a former special counsel for a court of inquiry investigating alleged irregularities in county fund management;

      • a zoologist who actively participated in a controversy involving his work with kinkajous by appearing on television, giving interviews to magazines, and orchestrating a letter-writing campaign;

      • a broadcast news reporter who hosted a segment that regularly appeared on television;

      • an abortion clinic protester who regularly appeared on a public street near the entrance to the clinic;

      • a group of hackers called Legion of Doom who sought publicity in a controversy over computer security.

      Actual Malice and Negligence

      In Texas, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statement. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statement was false or recklessly disregarding its falsity. See the general page on actual malice and negligence for details on these standards.

      Privileges and Defenses

      Texas courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Although the Texas Supreme Court has not ruled on the issue, many lower courts in Texas have recognized a privilege similar to the neutral reportage privilege.

      The CMLP has not identified any cases in Texas that recognize the wire service defense.

      There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

      Fair Report Privilege

      In Texas, the fair report privilege protects a "fair, true, and impartial account" of various official proceedings and meetings, including:

      • court proceedings, including reports of the contents of pleadings filed with the court;
      • executive or legislative proceedings, including proceedings of legislative committees;
      • proceedings before a managing board of an educational or charity institution supported from public funds;
      • proceedings of the governing body of a city or town, of a county commissioners court, or of a public school board; and
      • public meetings on matters of public concern.

      One court has applied the fair report privilege to reporting based on a police department press release. See Freedom Commc'n v. Sotelo, 2006 WL 1644602 (Tex. App. June 15, 2006).

      A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

      Neutral Reportage Privilege

      The Texas Supreme Court has neither recognized or rejected the neutral reportage privilege. Many lower courts have recognized a similar privilege, without calling it "neutral reportage." Under the rule set forth in these cases, when the media reports on an accusation made by a third party, it can defend itself by showing that the accusation was in fact made and under investigation, rather than by showing that the underlying allegation was substantially true. See Dolcefino v. Turner, 987 S.W.2d 100, 109 (Tex. App. 1998). This privilege extends to investigations and accusations made by government and non-government actors and organizations. Proof of actual malice defeats this privilege.

      Wire Service Defense

      The CMLP has not identified any cases in Texas that recognize the wire service defense. If you are aware of any cases, please notify us.

      Statute of Limitations for Defamation

      Texas has a one (1) year statute of limitations for defamation. See Tex. Civ. Prac. & Rem. Code sec. 16.002.

      Texas has adopted the single publication rule. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      Texas state courts have not yet considered whether the single publication rule applies to postings on the Internet, but a federal appeals court applying Texas law recently adopted it in the Internet context. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007). See also Hamad v. Center for the Study of Popular Culture, No. A-06-CA-285-SS (W.D. Tex. June 26, 2006) (adopting single pubication rule for Internet publications).

      Jurisdiction: 

      Subject Area: 

      Virginia Defamation Law

      Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.

      Elements of Defamation

      In Virginia, the elements of a defamation claim are

      1. publication of
      2. an actionable statement with
      3. the requisite fault on the part of the defendant.
      To be “actionable,” the statement must be a false statement of fact that harms the plaintiff's reputation in the community or deters other persons from associating with him or her. These elements of a defamation claim in Virginia are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

      Defamation Per Se

      Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:

      • attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
      • indicates that the plaintiff is infected with a contagious disease;
      • attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or
      • hurts the plaintiff in his or her profession or trade.

      Fleming v. Moore, 221 Va. 884, 899 (1981).

      Public and Private Figures

      The Virginia courts generally require a high level of public activity before a plaintiff becomes a limited-purpose public figure. The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). In Virginia, courts look at the following factors in determining whether a plaintiff is a limited-purpose public figure:

      1. whether the plaintiff had access to channels of effective communication;
      2. whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;
      3. whether the plaintiff sought to influence the resolution or outcome of the controversy;
      4. whether the controversy existed prior to the publication of the defamatory statements; and
      5. whether the plaintiff retained public figure status at the time of the alleged defamation.

      Carr v. Forbes, Inc., 259 F.3d 273, 280 (2001) 

      In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

      • the president of the two charitable organizations because the charities thrust themselves into the public eye through fund raising awareness efforts (Chapin v. Knight‑Ridder, Inc.);

      • a widely-published scientist and self-styled whistleblower who claimed the National Cancer Institute (NCI) had reversed its official position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);

      • A dolphin scientist who attempted to sell his dolphin technology to military and nonmilitary industries and who sought to influence the outcome of a public controversy through brochures and public statements (Fitzgerald v. Penthouse).

      On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

      • a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);

      • a public school English teacher and short-term, acting department head whose students complained of her poor teaching performance to parents and the school principal (Richmond Newspapers v. Lipscomb);

      • a company engaged in archaeological research for both government and private entities that was not generally known to the community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).

      Actual Malice and Negligence

      Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent. In cases brought by private figures where substantial danger to reputation is not apparent, the actual malice standard applies. The Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985).

      Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.  

      Privileges and Defenses

      Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

      CMLP has not identified any Virginia cases that recognize or refuse to recognize the neutral reportage privilege or the wire service defense. See Chapin v. Knight‑Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that "[w]e have never adopted or rejected the ‘neutral reportage' privilege . . . .")

      There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Fair Report Privilege

      In Virginia, the precise scope of the fair report privilege is not clear because all of the cases interpreting it have involved reports of court proceedings. The privilege covers reports of court proceedings, including matters stated in court documents, when the report is made in good faith and substantially accurate.

      In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956), the Virginia Supreme Court stated that "[t]he publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record." Because the case involved court proceedings not other government records, this statement would not necessarily bind later courts, but it is likely that Virginia courts would apply the privilege to government records open to the public. In that case, you would be privileged to report on information contained in marriage and divorce records, birth and death records, and property records, among other things, in addition to matters reflected in court records and proceedings.

      A few federal courts interpreting Virginia law have applied the fair report privilege to "governmental actions," like the unofficial public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of reprimand leaked to the press, Reuber, 925 F.2d at 713.

      Neutral Reportage Privilege

      CMLP has not identified any cases in Virginia concerning the neutral reportage privilege.  If you are aware of any, please contact us. 

      Wire Service Defense

      CMLP has not identified any cases in Virginia concerning the wire service defense.  If you are aware of any, please contact us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation is one (1) year. See Va. Code Ann. Sec. 8.01-247.1.

      The Virginia Supreme Court has not ruled on whether the single publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. One federal appeals court applying Virginia law upheld application of the single publication rule, reasoning that a great majority of states now follow it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984).

      The CMLP could not locate any cases in Virginia that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Virginia cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      Washington Defamation Law

      Note: This page covers information specific to Washington. For general information concerning defamation, see the general Defamation Law section of this guide.

      Elements of Defamation

      According to Washington law, defamation claims have four elements:

      1. falsity;
      2. an unprivileged communication;
      3. fault on the part of the defendant; and
      4. damages.

      These elements of a defamation claim in Washington are for the most part similar to the elements listed in the general Defamation Law section. However, in Washington, the elements of a defamation claim have two characteristics that differ slightly from the general section's description of defamation law.

      Public and Private Figures

      Washington courts rely heavily on the "vortex" notion of a limited-purpose public figure. See Camer v. Seattle Post-Intelligencer, 723 P.2d 863 (Wash. 1986). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974).

      For example, a businessman who was involved in a commercial real-estate development project was considered a limited-purpose public figure in a defamation lawsuit against a newspaper which had printed articles about the development project that stated he was a tax felon. The court reasoned the businessman was a limited-purpose public figure because he “thrust himself into the vortex of [the] public issue” when he sent letters to residents of the real-estate development area telling the residents about the development project and advising them he would be updating them on its progress. Clardy v. Cowles Pub. Co., 912 P.2d 1078 (Wash. Ct. App. 1986).

      Actual Malice and Negligence

      Washington courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent.

      Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection. 

      Failure to investigate is not sufficient to prove actual malice. You should be aware that when you do investigate and facts come to light that either do not support or rebut your factual assertion, the jury may infer recklessness and thus find actual malice if you go ahead and publish the information and it turns out to be false and defamatory. See Herron v. KING Broad. Co., 776 P.2d 98, 106 (Wash. App. Ct. 1989).

      Privileges and Defenses

      Washington courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

      The status of the neutral reportage privilege is unclear and CMLP has not identified any cases in Washington concerning the wire service defense.

      There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

      Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

      Fair Report Privilege

      Washington recognizes the fair report privilege.  The privilege extends to accurate reports of court proceedings, as well as documents filed in those proceedings.  See Mark v. Seattle Times, 635 P.2d 1081 (Wash. 1981).  A plaintiff cannot defeat the fair report privilege by a showing othat the defendant acted with actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

      Neutral Reportage Privilege

      It is unclear whether the neutral reportage privilege exists in Washington.

      The Washington Supreme Court noted the existence of the neutral reportage doctrine and that there was a "modern" trend towards rejecting it, but declined to rule on the privilege as neither party had raised the issue. Herron v. Tribune Publ'g Co., 736 P.2d 249, 260 (Wash. 1987).

      However, at least one lower court recognized the neutral reportage privilege in a case involving a newspaper publishing defamatory allegations concerning a businessman made by anonymous union sources. Senear v. Daily Journal American, 8 Media L. Rep. 2489, 2492-93 (Wash. Super Ct. 1982).

      Wire Service Defense

      CMLP has not identified any cases in Washington concerning the wire service defense.  If you are aware of any cases, please contact us.

      Statute of Limitations for Defamation

      The statute of limitations for defamation in Washington is two (2) years. See Wash. Rev. Code sec. 4.16.100.

      The Washington Supreme Court has adopted the single publication rule. Herron v. KING Broad. Co., 746 P.2d 295 (Wash. 1987). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

      The CMLP could not locate any cases in Washington that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Washington cases that acknowledge the single publication rule in the Internet context, please notify us.

      Jurisdiction: 

      Subject Area: 

      False Light

      False light is one of the four categories of "privacy torts" (the others being misappropriation, intrusion, and publication of private facts). While the nature of false light claims vary by state, they generally protect people from offensive and false facts stated about them to the public.

      Not all states recognize claims for false light. In the states that do recognize a cause of action for false light, the specific requirements to raise a claim vary. Accordingly, you should review your individual state section listed at the bottom of this page for specific information about your state.

      Generally speaking, a false light claim requires the following:

      1. The defendant published the information widely (i.e., not to just a single person, as in defamation);

      2. the publication identifies the plaintiff;

      3. it places the plaintiff in a "false light" that would be highly offensive to a reasonable person; and

      4. the defendant was at fault in publishing the information.

      See Restatement (Second) of Torts § 652E.

      Distinguishing Between False Light and Defamation Claims

      False light is similar to defamation. Most states that allow false light claims recognize some differences between false light and defamation, but there is still a great deal of overlap. In fact, a number of states do not recognize false light claims at all because of the overlap with defamation and because the vague nature of the tort might chill free speech.

      Several states that allow both false light claims and defamation claims differentiate the two by saying they protect people against different harms flowing from false statements. These states indicate that defamation protects a person's public reputation while false light remedies the victim of a false statement for his or her emotional distress.

      Some states, including California, hold that unlike defamation, false light concerns untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a stock photograph of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.

      Several states view false light as more narrow than defamation in certain respects -- that is, someone might be able to sue for defamation but not false light. For instance, false light requires broad publication to many people, while a defamatory statement could be made to only a few people. Some states note that false light requires the statement in question to be highly offensive to a reasonable person, while defamation does not require offensiveness so long as the statement actually harmed the reputation of the plaintiff. Finally, a number of states require the plaintiff to make a stronger showing that the defendant is at fault for false light than for defamation.

      Avoiding False Light Claims

      False light lawsuits often arise on the margins of stories, rather then at their core. For example, one might use a stock photo of a particular street to illustrate a story on local prostitution, and inadvertently create the impression that a person caught at random in the photo was frequenting the prostitutes. Be careful in what you use to illustrate your work.

      Always be careful to check all your facts. Document the support you have for all of the information you publish. Statements that seem innocuous or harmless to you may offend a reader and could give rise to a lawsuit if they are also false.

      When working online, be particularly mindful of the formatting of your site. Be sure that your website doesn't get reformatted in such a way as to create an unwitting juxtaposition of images and stories that creates a connotation that you had not intended.

      While you can't reduce your risks entirely, we provide a number of helpful suggestions in the section on Practical Tips for Avoiding Liability Associated with Harms to Reputation.

      State Law: False Light

      State laws vary with regard to false light suits. Consult the state sections listed below to determine whether your state recognizes false light and, if so, how it works in practice. (Note that the guide does not include every state at this time.)

      Jurisdiction: 

      Subject Area: 

      Arizona: False Light

      Note: This page covers information specific to Arizona. For general information concerning false light see the general False Light section of this guide.

      Arizona recognizes the tort of “false light” as one of the four “invasion of privacy” torts. Plaintiffs can sue for false light when offensive and false information or innuendo about them is spread publicly. The specific elements a plaintiff must prove are listed below under Elements of a False Light Claim.

      While false light in Arizona is similar to defamation, there are several differences.

      • First, statements need to be publicized more widely for false light than defamation. See Hart v. Seven Resorts, Inc., 947 P.2d 846, 854 (1997) (“‘Publicity’ as it is used [for false light] differs from ‘publication’ [for defamation purposes].”) (second alteration in original) (quoting Restatement (Second) of Torts § 652D).
      • Second, defamation requires harm to reputation or other social consequences, while false light does not. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (1989) (“Privacy, [unlike defamation], does not protect reputation but protects mental and emotional interests. . . . Under this theory, a plaintiff may recover even in the absence of reputational damage... .”)
      • Third, material must be offensive for false light, id. at 786, while it need not be for defamation.
      • Fourth, false light in Arizona protects against not only false statements, but also false implications and innuendo. Id. at 787.

      Elements of a False Light Claim

      Arizona has adopted the formulation of the tort of false light found in Restatement (Second) of Torts § 652E. Godbehere, 783 P.2d at 786‑87. To establish a false light claim, a plaintiff must show that the defendant (1) made statements about the plaintiff (2) to the public that are (3) “highly offensive to a reasonable person” and (4) the defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed.” Hart, 947 P.2d at 854. Each of these requirements is described in greater detail below.

      Identification of Plaintiff

      CMLP is not aware of any Arizona case law discussing how specifically a statement must identify the plaintiff to create an actionable claim for false light.

      Public Disclosure

      False light, as well as the other invasion of privacy torts recognized in Arizona “‘depends upon publicity given to the private life of the individual.’” Hart, 947 P.2d at 854 (quoting Restatement (Second) of Torts § 652D). To make out a claim for false light, a plaintiff must show that “‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become public knowledge.’” Id., (quoting Restatement (Second) of Torts § 652D). The form of communication (oral, written, etc.) does not matter as long as the communication “‘reaches, or is sure to reach, the public.’” Id. (quoting Restatement (Second) of Torts § 652D).

      To prove publicity, the plaintiff must provide more than an “unsubstantiated allegation” that information has been communicated publicly. Id. at 855. In Hart, the court provided a list of illustrative examples of “the kinds of evidence” a plaintiff might use to help prove publication, including “affidavits from persons in the community who had heard the rumors; affidavits by [the plaintiff] denying that they discussed [the information], thereby starting the rumors themselves; or any direct allegation of actual publication (e.g. via newspaper, public announcement, etc.) by [the defendant].” Id. at 855 n.18.

      Offensiveness

      The statement must be “highly offensive to a reasonable person.” Godbehere, 783 P.2d at 786 (citing Time, Inc. v. Hill, 385 U.S. 374 (1967); Restatement (Second) of Torts § 652E); Hart, 947 P.2d at 854. “Thus, the plaintiff’s subjective threshold of sensibility is not the measure, and ‘trivial indignities’ are not actionable.”  Godbehere, 783 at 786. In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

      Falsehood

      To prove false light, a plaintiff must show “‘a major misrepresentation of [the plaintiff’s] character, history, activities or beliefs,’ not merely minor or unimportant inaccuracies.” Godbehere, 783 P.2d at 787 (alteration in original) (quoting Restatement § 652E (Second) of Torts cmmt c).

      “A false light cause of action may arise when something untrue has been published about an individual, or when the publication of true information creates a false implication about the individual.” Id. (internal citation omitted). Thus, false light protects against not only outright falsehoods, but also against false innuendo, and “[a] plaintiff may bring a false light invasion of privacy action . . . even though the actual facts stated are true.” Id.

      As an example of this type of statement, the court in Godbehere cited Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), in which the plaintiff successfully sued for false light invasion of privacy when photographs for which she had posed nude and consented to publication in Playboy magazine were actually published in Hustler magazine, “a publication of much lower standing in the journalistic community.” Id. at 787 n.2.

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Arizona, the plaintiff must show that the defendant acted “with knowledge of the falsity or reckless disregard for the truth.” Godbehere, 162 Ariz. at 786, 788. This language echoes the “actual malice” standard in public figure defamation cases.

      While the Supreme Court of Arizona has specified that the “actual malice” standard applies to false light claims made by public figures, id. at 788‑89, it has left open the question of whether a non‑public figure may recover under a false light claim where he shows negligence but not actual malice, id. at 789 n.6.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. There is also an important common law protection that may be protect you when you comment on issues of public concern:

      Issues of Public Concern Related to Public Officials

      The Supreme Court of Arizona has specified that “there can be no false light invasion of privacy action for matters involving official acts or duties of public officers” because of public officials’ more limited privacy rights. Godbehere, 783 P.2d at 789. As a result, “a plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life or duties.” Id. Unlike in some other states, Arizona has not limited this protection to only media defendants.

      Jurisdiction: 

      Subject Area: 

      California: False Light

      Note: This page covers information specific to California. For general information concerning false light see the general False Light section of this guide.

      California recognizes "false light" claims. A person can sue for false light when something highly offensive is implied to be true about them that is actually false.

      False light in California is different from defamation. While defamation concerns statements that are actually false, false light is about false implications. The difference between defamation and false light can be illustrated by Gill v. Curtis Publ'g Co., 239 P.2d 630 (Cal. 1952), the case that established false light in California. In Gill, the "Ladies Home Journal" published an article criticizing "love at first sight" as being based on nothing more than sexual attraction. The author said such love was "wrong" and would lead to divorce. The article featured a photo of a couple, with the caption, "[p]ublicized as glamorous, desirable, 'love at first sight' is a bad risk." The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the "wrong" kind of love, the implication was clearly there. The couple won by proving the magazine created a false impression of them.

      Elements of a False Light Claim

      Falsehood

      First, in order to prove a false light claim, a plaintiff must show that the defendant implied something false. For instance, in Gill, discussed above, the photograph created the false impression that the couple was behaving wrongly in love. Similarly, in Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found that having an actor's photo on the cover of Playgirl magazine, in combination with the magazine's headlines, could create the false impression that nude photos of the actor appeared inside.

      On the other hand, when there is no false implication of fact, the claim will not succeed. True statements are not actionable. Moreover, when the context shows that the writer is using "rhetorical hyperbole" and "imaginative expression" that "cannot be read to imply the assertion of an objective fact," the plaintiff's claim will fail. See Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995).

      It is important to distinguish the types of falsehoods appropriate for a false light claim versus a defamation claim. As discussed above, defamation concerns false statements of fact, while false light concerns false implications. Plaintiffs generally cannot sue for both at the same time about the same statement. When a plaintiff sues for both defamation and false light, and the suit basically concerns a false statement of fact, the court will dismiss the false light claim as superfluous. See, e.g., McClatchy Newspapers, Inc. v. Superior Court, 189 Cal. App. 3d 961, 13 Media L. Rep. 2281 (Cal. Ct. App. 1987); see also "Single Publilcation Rule," Cal. Civil. Code. § 3425.3 (prohibiting more than one cause of action concerning a false statement for the same publication).

      Offensiveness

      For the plaintiff to win, the statement must do more than create a false impression. The false impression that is created must be "highly offensive to a reasonable person." Fellow v. Nat'l Enquirer, Inc., 32 Cal. 3d 234, 238, 13 Media L. Rep. 1305 (Cal. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

      Identification of Plaintiff

      The falsehood in question must sufficiently identify the plaintiff. California courts generally do not require the plaintiff to be identified by name. For instance, cases such as Gill, discussed above, concern photographs of plaintiffs.

      Public Disclosure

      A plaintiff must show that the defendant publicly disclosed the falsehood concerning them. While this basic requirement is clear, its application is not -- courts go back and forth on how many people must receive the information for it to be "publicly disclosed." It is safe to say that publishing on the Internet for the whole world to see is public disclosure, and it probably safe to say that privately telling one person is not public disclosure; but it is hard to define the requirement any further.

      Fault

      A plaintiff must also show that the false implication occurred due to the defendant's fault.  If the plaintiff is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Readers's Digest Ass'n v. Superior Court, 37 Cal. 3d 244, 265 (Cal. 1984); Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002). Although the California Supreme Court has not decided the level of fault plaintiffs who are not public figures must show, lower California courts indicate that plaintiffs must show that defendants acted "negligently." See, e.g., M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (Cal. Ct. App. 2001). For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence in this guide.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case.  See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      Opinion

      A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see the section on Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

      Parody

      You will not be held liable for casting a plaintiff in a false light if the false statement of fact in question is in a context the average reader would understand is a parody. See San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 21 Media L. Rep. 1791 (1993). In San Francisco Bay Guardian, the court held that a newspaper would not be held liable for statements in its April Fool's Day section suggesting that a landlord gave his tenants electroshock therapy because a reasonable reader would understand them as parody.

      Jurisdiction: 

      Subject Area: 

      District of Columbia: False Light

      Note: This page covers information specific to the District of Columbia. For general information concerning false light see the general False Light section of this guide.

      The District of Columbia recognizes the tort of "false light." Plaintiffs can sue for false light when a false and offensive statement is made about them to the public and causes them distress. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

      False light in the District of Columbia overlaps significantly with Defamation. In D.C., defamation and false light both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. "The false light . . . action differs from an action for defamation because a defamation tort redresses damage to reputation while a false light privacy tort redresses mental distress from having been exposed to public view." White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). In other words, defamation protects a person's public reputation, while false light protects a person's internal mental tranquility.

      Despite this difference in protected interests, "[t]here is a great deal of overlap between the causes of action for defamation and false light." Moldea v. New York Times Co.,15 F.3d 1137, 1151 (D.C. Cir. 1994). As the Moldea court noted, "[p]ublicity that is actionable in a false light claim generally will be actionable in defamation as well." Id. Courts often treat the two as analytically similar.

      Because false light and defamation overlap so greatly, plaintiffs may only recover on one or the other theory concerning the same publication. Modea, 15 F.3d at 1151. The defenses, privileges, and burdens of proof that protect defendants in defamation cases are equally applicable to false light cases.

      Because of the overlap between defamation and false light, you should review the section on District of Columbia Defamation Law as well.

      Elements of a False Light Claim

      If a plaintiff files a false light claim, he or she must show that there was

      1. public disclosure of
      2. a false statement, representation, or imputation
      3. about the plaintiff that
      4. would be highly offensive to a reasonable person.

      See Klayman v. Segal, 783 A.2d 607, 613 (D.C. 2002). Moreover, the plaintiff must show that the defendant is at fault.

      The recent case of Benz v. Washington Newspaper Publ'g Co., 34 Media L. Rep. 2368 (D.D.C. 2006), illustrates how false light works in DC. In that case, a producer from CNN claimed that the Washington Enquirer had stated that she had been "been linked romantically with power players" and that she had "hooked up" with a "porn king." Id. at n.5. The court found that the newspaper's statements were "highly offensive."

      Falsehood

      First, in order to prove a false light claim, a plaintiff must show that something false was stated. The falsehood can be implied or directly stated. See White v. Fraternal Order of Police, 909 F.2d 512, 523 (D.C. Cir. 1990).

      Offensiveness

      For the plaintiff to win, the statement must do more than state a false fact. The false fact stated must be "highly offensive to a reasonable person." S. Air Transp., Inc. v. ABC,, 670 F. Suppp. 2d. 38, 42 (D.D.C. 1987) (quoting Restatement 2d of Torts § 652E). It is not enough that the plaintiff is offended; it must be reasonable to take offense.

      Identification of Plaintiff

      The falsehood in question must identify the plaintiff somehow. The plaintiff does not need to be named, as long as he or she can be identified. See Lohrenz v. Donnelly, 223 F. Supp. 2d 25, 47-48 (D.D.C. 2002).

      Public Disclosure

      While District of Columbia courts require the false statement to be disclosed to the public, they have not ruled on what exactly that means. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See White v. Fraternal Order of Police, 909 F.2d 512, 524-25 (D.C. Cir. 1990)). At least one D.C. court has held that plaintiffs who are not public figures must merely show that defendants acted "negligently." See Dresbach v. Doubleday & Co., 512 F. Supp. 1285, 1288 (D.D.C. 1981). For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      No Suits by Corporations

      False light in the District of Columbia compensates the plaintiff for mental distress and anguish. One federal district court in D.C. held that because corporations cannot be offended, they cannot sue for false light. See S. Air Transp., Inc. v. ABC, 670 F. Supp. 38, 42 (D.D.C. 1987).

      Opinion

      A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for an opinion that offends others. Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

      Fair Comment

      One court in D.C. has held that the fair comment privilege, which applies to defamation claims, also protects defendants in false light claims. In Lane v. Random House, Inc., 985 F. Supp. 141, 150 (D.D.C. 1995), the court described the privilege as protecting a writer when he offers his views on a situation where "the reader is aware of the factual foundation for" the author's statement. In such a situation, the reader can "judge independently whether the comment is reasonable." Id. The court noted that "the fair comment privilege can be invoked even if the underlying facts are not included with the comment." Id.

      Jurisdiction: 

      Subject Area: 

      Florida: False Light

      Note: This page covers information specific to Florida. For general information concerning false light see the general False Light section of this guide. 

      Florida false light law is in flux. While some Florida appellate courts have recognized false light claims, the Florida Supreme Court has not ruled on whether the tort applies in Florida. It has indicated, however, that an invasion of privacy action may be used to remedy what it described as “false light in the public eye--publication of facts which place a person in a false light even though the facts themselves may not be defamatory.”  See Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So.2d 1239, 1252 (Fla. 1996).

      On March 6, 2008, the Florida Supreme Court heard oral argument in the appeal of Gannett Co. v. Anderson, 947 So.2d 1. (Fla. Dist. Ct. App. 2006). Anderson claimed that a Gannett news article, while factually true, raised the false implication that he had murdered his wife with a 12-gauge shotgun because the article waited two sentences to mention that the shooting had been declared accidental. Gannett, 947 So.2d at 3. The court’s decision in that case is expected to resolve whether false light invasion of privacy is distinct from defamation in Florida.

      Elements of a False Light Claim

      Florida appellate courts that have recognized false light have applied the elements discussed in the general False Light section, with the following exceptions and clarifications:

      Offensiveness

      The statement must be "highly offensive to a reasonable person" to constitute false light invasion of privacy.  See See Straub v. Scarpa, 967 So.2d 437, 439 (Fla. Dist. Ct. App. 2007) (quoting Restatement (Second) of Torts § 652E). For example, a letter to a homeowners’ association stating that the association budget “will no doubt contain very expensive items that have nothing to do with the operation of our community,” did not cast a director of the association in a false light because no reasonable person would be highly offended by the letter. Straub, 967 So.2d at 439.

      Falsehood

      Florida courts have not required falsehood.  For example, a Florida appellate court held that a man could claim false light invasion of privacy when a 60 Minutes television segment included interview footage of his former wife in the midst of “stories and pictures of women who had been abused, battered, and killed by their domestic partners.” See Heekin, 789 So.2d at 358. False light was an actionable claim because the broadcast created the impression that the plaintiff had battered his wife, even though the entire broadcast was truthful. According to the court, “neither knowledge of the falsity of the information nor reckless disregard for its truth is an element of a cause of action for false light invasion of privacy.” See Heekin, 789 So.2d at 359.

      Fault

      Florida courts have required that the “defendant must have acted either knowingly or in reckless disregard as to the falsity of the publicized material and the false light in which it would be placed.” Lane v. MRA Holdings, LLC, 242 F.Supp.2d 1205, 1221 (M.D. Fla. 2002).

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case.  See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      Jurisdiction: 

      Subject Area: 

      Georgia: False Light

      Note: This page covers information specific to Georgia. For general information concerning false light see the general False Light section of this guide.

      Georgia recognizes the tort of "false light."  Plaintiffs can sue for false light when false information is spread about them that depicts them in an untruthful and highly offensive manner. The specific things a plaintiff must prove to establish false light are listed below under "Elements of a False Light Claim."

      False light in Georgia is essentially the same as defamation. No reported decision in Georgia state courts has found a defendant liable for false light without also finding the defendant liable for defamation. But see Maples v. Nat'l Enquirer, 763 F. Supp. 1137, 1141 (N.D. Ga. 1990) (finding that under Georgia law, statements can constitute false light without being defamatory). Georgia courts readily acknowledge that "[t]he interest protected [by the tort of false light] is clearly that of reputation, with the same overtones of mental distress as in defamation." Association Servs. v. Smith, 549 S.E.2d 454, 459 (Ga. Ct. App. 2001).

      What the overlap means is that if you are sued for false light, you will probably also be sued for defamation (and vice versa). If you are concerned about false light, you should also review Georgia Defamation Law. Notably, "absolute privileges" that completely shield someone from liability for defamation also apply to claims for false light. See Rothstein v. L.F. Still & Co., 351 S.E.2d 513, 514-15 (Ga. Ct. App. 1986).

      Elements of a False Light Claim

      To establish a claim of false light in Georgia, a plaintiff must establish the existence of false publicity that depicts the plaintiff as something or someone which she is not. Next, the plaintiff must demonstrate that the false light in which she was placed would be highly offensive to a reasonable person. Association Servs., 351 S.E.2d at 459.

      Falsehood

      First, in order to prove a false light claim, the plaintiff must show that he or she has been depicted as something he or she is not. In other words, the plaintiff must show that a falsehood about him or her was stated. True statements cannot form the basis of a lawsuit.

      Offensiveness

      For the plaintiff to win, the statement must do more than create a false impression. The false impression that is created must be "highly offensive to a reasonable person." Brewer v. Rogers, 439 S.E.2d 77, 83 (Ga. Ct. App. 1993) (quoting, via other cases, Restatement (Second) of Torts § 652E). Georgia courts emphasize that they do not protect "hypersensitive" people. Thomason v. Times-Journal, Inc., 379 S.E.2d 551, 604 (1989) (finding no liability for the wrong name being accidentally used in an obituary).

      Identification of Plaintiff

      The falsehood in question must identify the plaintiff in particular. See, e.g., Collins v. Creative Loafing Savannah, Inc., 592 S.E.2d 170 (Ga. Ct. App. 2003).

      Public Disclosure

      A plaintiff must also show that the defendant publicly disclosed the falsehood concerning them. While this basic requirement is clear, it can be difficult to determine in particular situations whether telling a limited number of people in a certain setting constitutes "the public." It is safe to say that publishing on the Internet is public disclosure.

      Fault

      A plaintiff must also show that the defendant's fault caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Brewer v. Rogers, 439 S.E.2d 77 (Ga. Ct. App. 1993). In most other situations, courts require the plaintiff merely to show that the defendant has been "negligent." For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      Opinion

      A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. See S&W Seafoods Co. v. Jacor Broad., 390 S.E.2d 228 (Ga. Ct. App. 1989). Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

      Issues of Public Concern

      Georgia courts have held that you cannot be sued for false light when you comment on an issue of public interest. See Wilson v. Thurman, 445 S.E.2d 811 (Ga. Ct. App. 1994) (finding that defendant police officers could not be held liable for false light after allegedly wrongfully investigating plaintiff for and charging him with sodomy (at that time a crime in Georgia) because the investigation focused on a matter of public concern).

      Jurisdiction: 

      Subject Area: 

      Illinois: False Light

      Note: This page covers information specific to Illinois. For general information concerning false light see the general False Light section of this guide.

      Illinois recognizes the tort of "false light." A person can sue for false light when a false and offensive statement is made about them to the public and causes them distress. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

      False light in Illinois overlaps significantly with defamation. In Illinois, defamation and false light both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. Defamation protects a person's public reputation, while false light protects a person's internal mental tranquility. See, e.g., Martin-Trigona v. Kupcinet, 1988 WL 93945 (N.D. Ill. Sept. 2, 1988).

      False light in Illinois is broader than defamation. While everything that is defamation is also false light, false light reaches some things that defamation does not. See Lovgren v. Citizens First Nat'l Bank, 534 N.E.2d 987 (Ill. 1989). For instance, in Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), a woman who had posed nude in Playboy sued Hustler because it published nude photos of her without her consent. The court stated that she had a right to sue for false light because Hustler insinuated that she was willing to appear nude in a "degrading setting."

      Despite their overlap, a plaintiff can sue for both false light and defamation and potentially recover damages based on both claims. See, e.g., Lovgren, 534 N.E.2d at 987.

      Elements of a False Light Claim

      If a plaintiff files a false light claim, he or she must show that the defendant, acting with reckless disregard, placed him or her before the public in a false light in a manner that was highly offensive to a reasonable person. Lovgren, 534 N.E.2d at 989 (quoting Restatement (Second) of Torts § 652(E)).

      The case of Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201 (Ill. 1992) provides a good illustration of how false light works in Illinois. In that case, a man alleged that he was working to promote a cartoon festival to benefit victims of neurofibromatosis (sometimes called 'Elephant Man's disease'). The man, whose wife and son suffered from the disease, appeared on a morning radio talk show to promote the festival. The DJs allegedly mocked the man's wife and child, implying (falsely) that they had abnormally large heads. The court held that based on his allegations, the man would be able to sue the radio station for false light.

      Falsehood

      First, in order to prove a false light claim, a plaintiff must show that something false was stated. You cannot be sued for "strong criticism" that is neither true nor false, but merely opinion. See, e.g., Raveling v. HarperCollins Publishers, 2004 WL 422538, at *2 (N.D. Ill. Feb. 10, 2004).

      Offensiveness

      For the plaintiff to win, the statement must do more than state a false fact. The false fact stated must be "highly offensive to a reasonable person." Lovgren, 534 N.E.2d at 989 (quoting Restatement (Second) of Torts § 652(E) (1977)). It is not enough that the plaintiff is offended; it must be reasonable to take offense. In the Kolegas case discussed above, the Illinois Supreme Court held that it would be reasonable to take offense at the allegation that a man's wife and child had abnormally large heads due to disease.

      Identification of Plaintiff

      The falsehood in question must identify the plaintiff somehow. The plaintiff does not need to be named, as long as he or she can be identified.

      Public Disclosure

      Illinois courts require the false statement to be disclosed to the public. See Lovgren, 534 N.E.2d at 989. For instance, in Lovgren the court found that an advertisement published in a local newspaper and handbills distributed in public were sufficient to constitute public disclosure. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Illinois, the plaintiff must show that the defendant acted with "actual malice." See Lovgren, 432 N.E.2d at 989-991. For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      Opinion

      A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for an opinion that offends others. As mentioned in the Raveling case, you cannot be sued for "strong criticism" alone, unless false statements of fact are involved.

      Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

      Jurisdiction: 

      Subject Area: 

      Indiana: False Light

      Note: This page covers information specific to Indiana. For general information concerning false light see the general False Light section of this guide. 

      Indiana recognizes the tort of "false light." Plaintiffs can sue for false light in certain circumstances when false information about them has been spread to others. Because Indiana courts have not heard many cases raising false light, it is unclear when exactly someone can sue for being placed in a false light.

      The case of Mavity v. Tyndall, 66 N.E.2d 755 (Ind. 1946) established false light in Indiana. In that case, the police took a mug shot of a man they were investigating for a crime. Charges against him were eventually dropped. However, the police maintained a photo of the man in their "rouges' gallery." The man sued and was able to have his photo removed because the police were casting him in a false light, implying that he was guilty of a crime.

      Elements of a False Light Claim

      The exact elements of a false light claim -- that is, what must be proven for a plaintiff to win -- have not been established in Indiana. See St. John v. Town of Ellettsville, 46 F. Supp. 2d 834, 851 (S.D. Ind. 1999).

      Some limited aspects of what must be proven for a false light claim are clear. It is clear that the plaintiff must prove, at least, that you have said something false. See Near E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324, 1335 (Ind. Ct. App. 1990). It is also clear that the false statement must identify the plaintiff. For instance, in Furno v. Citizens Ins. Co. of Am., 590 N.E.2d 1137 (Ind. Ct. App. 1992), a statement about chiropractors in general was held not to specifically identify a particular chiropractor who was upset by the statement.

      Other states require plaintiffs suing for false light to prove that the statement was offensive and that the statement was disclosed to the public. It is not clear if Indiana will employ these requirements as well. Many states also require plaintiffs to prove that the defendant acted with "actual malice", at least for more famous or prominent public figures. Again, Indiana courts have not yet said the level of fault they will require.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Indiana courts have not yet said what they are.

      Jurisdiction: 

      Subject Area: 

      Massachusetts: False Light

      Note: This page covers information specific to Massachusetts. For general information concerning false light see the general False Light section of this guide. 

      Massachusetts courts do not recognize a claim for false light.  See ELM Medical Lab, Inc. v. RKO Gen., Inc., 532 N.E.2d 675, 681 (Mass. 1989); Jones v. Taibbi, 512 N.E.2d 260, 270 (Mass. 1987); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995).

      Jurisdiction: 

      Subject Area: 

      Michigan: False Light

      Note: This page covers information specific to Michigan. For general information concerning false light see the general False Light section of this guide. 

      Michigan recognizes the tort of "false light." Plaintiffs can sue for false light when false information is spread about them that is humiliating. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

      False light in Michigan is similar to defamation. See, e.g., Morganroth v. Whitall, 411 N.W.2d 859, 863-64 (Mich. Ct. App. 1987). Both involve false statements that harm someone's public image. You can be sued for both defamation and false light for the same statements. However, a plaintiff can only obtain money for one or the other violation based on the same statements.

      Elements of a False Light Claim

      To win on a false light claim, a plaintiff must show that the defendant made statements that create unreasonable and highly objectionable publicity, attributing to the plaintiff characteristics, conduct or beliefs that are false, and that the defendant presented these statements to the public. Morganroth, 411 N.W.2d at 863-64. Each of these requirements is described in greater detail below:

      Identification of Plaintiff

      The statement in question must identify the plaintiff in particular. For example, criticizing all doctors will not allow any particular doctor to sue you.

      Offensiveness

      The statement must be "unreasonable and highly objectionable." Morganroth, 411 N.W.2d at 863-64 (quoting Restatement (Second) of Torts § 652E cmt. b). The material must be "highly offensive to a reasonable person." Early Detection Ctr., P.C. v. N.Y. Life Ins. Co., 403 N.W.2d 830, 835 (Mich. Ct. App. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

      Falsehood

      A plaintiff must show that something false has been said about him or her. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win. For instance, in Morganroth v. Whitall, a writer for the Detroit News published a story about a hairdresser, describing how she used the unusual technique of blowtorching her client's hair. 411 N.W.2d at 859-61. She sued and lost because the facts in the story describing her hairdressing method were true.

      Public Disclosure

      For a plaintiff to win, he or she must show that the defendant made the statement in question to the public in general or to a large number of people. Reed v. Ponton, 166 N.W.2d 629, 630 (Mich. Ct. App. Mich. 1968). For instance, the plaintiff in one case complained that being fired cast her in a false light, but she lost because she did not claim that the reasons for her firing had been publicized by her employer. Ledl v. Quik Pik Food Stores, Inc., 249 N.W.2d 529 (Mich. Ct. App. 1994).

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. Michigan courts have not yet stated what level of fault is required. Most states require that the plaintiff prove the defendant acted with "actual malice", at least when the matter discussed is one of public concern or the plaintiff is an important or prominent public figure. Other states merely require that the defendant was "negligent" in publishing the statement in question. For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Michigan courts have not yet said what they are.

      Jurisdiction: 

      Subject Area: 

      New Jersey: False Light

      Note: This page covers information specific to New Jersey. For general information concerning false light see the general False Light section of this guide. 

      New Jersey recognizes the tort of "false light." Plaintiffs can sue for "false light" when false information is spread about them that is false and offensive. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

      False light in New Jersey is similar to defamation. Both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. Defamation protects a person's public reputation, while false light protects a person's internal mental tranquility. See Romaine v. Kallinger, 537 A.2d 284, 290 (N.J. 1988)

      Elements of a False Light Claim

      To establish false light a plaintiff must prove that the defendant (1) made statements about the plaintiff (2) to the public that are (3) offensive and (4) false. Each of these requirements is described in greater detail below.

      Identification of Plaintiff

      The statement in question must identify the plaintiff in particular. For example, falsely criticizing all doctors will not allow any particular doctor to sue you.

      Public Disclosure

      For a plaintiff to win, he or she must show that the statement in question was publicized. While New Jersey courts require the false statement to be disclosed to the public, they have not ruled on what exactly that means. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

      Offensiveness

      The statement must be "highly offensive to a reasonable person." Romaine, 537 A.2d at 290 (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.. For instance, in Salek v. Passaic Collegiate School, a high school yearbook featured a photo in its "Funny Pages" of a male and a female teacher, with a caption (falsely) implying that the teachers were in a romantic relationship. 605 A.2d 276 (N.J. Super. Ct. App. Div. 1992). One of the teachers sued, but the court held she could not recover because the yearbook caption was not offensive to a reasonable person.

      Falsehood

      In order to prove a false light claim, the plaintiff must show that the information was false. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win.

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Miele v. Rosenblum, 603 A.2d 43, 48 (N.J. Super. Ct. App. Div. 1991). New Jersey courts have not decided what level of fault must be shown when the plaintiff is a private figure. They could either require the plaintiff to show that the defendant acted with actual malice, as for public figures, or could require the plaintiff to show that the defendant acted "negligently." For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but New Jersey courts have not yet said what they are.

      Jurisdiction: 

      Subject Area: 

      New York: False Light

      Note: This page covers information specific to New York. For general information concerning false light see the general False Light section of this guide.

      The tort of "false light" is not recognized in New York; you cannot sue or be sued on such a claim. See, e.g., Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff'd, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993).

       

      Jurisdiction: 

      Subject Area: 

      North Carolina: False Light

      Note: This page covers information specific to North Carolina. For general information concerning false light see the general False Light section of this guide. 

      The tort of "false light" is not recognized in North Carolina; you cannot sue or be sued on such a claim. See Renwick v. News & Observer, 312 S.E.2d 405 (N.C. 1984).

       

      Jurisdiction: 

      Subject Area: 

      Ohio: False Light

      Note: This page covers information specific to Ohio. For general information concerning false light see the general False Light section of this guide. 

      Ohio's Supreme Court recently recognized the tort of "false light" in June 2007. In that case, Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007), a woman, Lauri Weinfeld, opened up a facility for outdoor banquets and weddings next to the home of Robert and Katherine Welling and their children. The neighbors came into conflict, and eventually Weinfeld found a window in her banquet facility broken. She put up a number of posters offering a $500 reward for information about the incident at the workplace of Mr. Welling and at the workplaces and schools of the family's children.

      The Wellings and Lauri Weinfeld sued each other on various claims, including a claim by the Wellings that Weinfeld had through the posters cast them in a false light. In response, the Ohio Supreme Court announced for the first time that it would recognize the tort of false light: "In Ohio, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Welling, 866 N.E.2d 1051 (quoting Restatement (Second) of Torts § 652E).

      Elements of a False Light Claim

      Parsing the court's decision in Welling, there are several things a plaintiff prove to establish false light:

      1. The defendant "gave publicity" to what he or she said about the plaintiff -- that is, the defendant communicated it to many people;
      2. The statement placed the plaintiff before the public in a "false light" -- that is, the defendant communicated something false;
      3. The statement was "highly offensive to a reasonable person"; and
      4. The defendant was at fault and knew or was reckless to the falsehood of the statement.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

      For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Ohio courts have not yet said what they are.

      Jurisdiction: 

      Subject Area: 

      Pennsylvania: False Light

      Note: This page covers information specific to Pennsylvania. For general information concerning false light see the general False Light section of this guide.

      Pennsylvania recognizes the tort of "false light." Plaintiffs can sue for false light when false information is spread about them that is offensive. The specific things a plaintiff must prove are listed below under Elements of a False Light Claim.

      While false light in Pennsylvania is similar to defamation, there are several differences. First, statements need to be publicized more widely for false light than defamation. Second, defamation requires harm to reputation or other social consequences, while false light does not. Third, material must be offensive for false light, while it need not be for defamation.

      Elements of a False Light Claim

      To establish a false light claim, a plaintiff must show that the defendant (1) made statements about the plaintiff (2) to the public that are (3) offensive and (4) false. Each of these requirements is described in greater detail below.

      Identification of Plaintiff

      The statement in question must identify the plaintiff in particular. For example, falsely criticizing all doctors will not allow any particular doctor to sue you.

      Public Disclosure

      For a plaintiff to win, he or she must show that the defendant made the statement to the public. The statement must be made either to the public at large (e.g., over the Internet) or to so great a number of people that it is "substantially certain to become . . . public knowledge." Curran v. Children's Serv. Ctr. Inc., 578 A.2d 8, 12 (Pa. Super. Ct. 1990) (quoting Restatement (Second) of Torts § 652D comm. a). In Curran, the plaintiff lost because a "pink slip" he personally received was not sufficient public disclosure for a false light claim.

      Offensiveness

      The statement must be "highly offensive to a reasonable person." Larsen v. Philadelphia Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct. 1988) (quoting Restatement (Second) of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense. For instance, in Parano v. O'Connor, a court held that a plaintiff could not reasonably be offended by a newspaper article describing him as "uncooperative" and "adversarial." 641 A.2d 607, 608 (Pa. Super. Ct. 1994).

      Falsehood

      A plaintiff must show that something false has been said about him or her. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win.

      Fault

      A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Pennsylvania, the plaintiff must show that the defendant acted with "knowledge of" a statement's falsity or acted with "reckless disregard" of its falsity. Santillo v. Reedel, 634 A.2d 264 (Pa. Super. Ct. 1993). In other words, to be liable for false light, the defendant must make a statement he knows is false or must be very careless as to whether the statement is true of false.

      Privileges and Defenses

      If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. There is also an important common law protection that may be protect you when you comment on issues of public concern:

      Media Defendants

      Under Pennsylvania law, the media is insulated from liability for false light when it reports on issues of public concern related to public officials. Neish v. Beaver Newspapers, Inc., 581 A.2d 619, 624-25 (Pa. Super. Ct. 1990). Courts deem public officials as having "relinquish[ed] . . . insulation of scrutiny of [their] public affairs." Id.

      What kinds of media are protected? Neish concerned a reporter for a traditional newspaper. If you work in a non-traditional media setting, an important question is whether the media protection described above will protect you. Unfortunately, Pennsylvania courts have not yet said how far the protection for media defendants will extend.

      Jurisdiction: 

      Subject Area: 

      Texas: False Light

      Note: This page covers information specific to Texas. For general information concerning false light see the general False Light section of this guide. 

      The tort of "false light" is not recognized in Texas; you cannot sue or be sued on such a claim. See Cain v. Hearst Corp., 878 S.W.2d 577, 579-80 (Tex. 1994).

       

      Jurisdiction: 

      Subject Area: 

      Virginia: False Light

      Note: This page covers information specific to Virginia. For general information concerning false light see the general False Light section of this guide. 

      The tort of "false light" is not recognized in Virginia; you cannot sue or be sued on such a claim. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2000). 

      Jurisdiction: 

      Subject Area: 

      Washington: False Light

      Note: This page covers information specific to Washington. For general information concerning false light see the general False Light section of this guide.

      Washington courts have not explicitly recognized the tort of "false light." However, unlike several other states, Washington has not explicitly rejected the tort of false light either. In one case, the Washington Supreme Court appeared skeptical about whether allowing false light claims would be a good idea due to its similarity to defamation. See Eastwood v. Cascade Broad. Co., 722 P.2d 1295, 1298-99 (Wash. 1986). 

      Jurisdiction: 

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      Responding to Strategic Lawsuits Against Public Participation (SLAPPs)

      SLAPP stands for "Strategic Lawsuit Against Public Participation." It refers to a lawsuit filed in retaliation for speaking out on a public issue or controversy. You might be "SLAPPed" for actions such as posting a blog entry, posting a comment on another person's blog, writing a letter to the editor of a newspaper, testifying before the legislature, reporting official misconduct, or circulating a petition. Often, SLAPPs are brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions.

      Lawsuits targeting individuals who post anonymously on the Internet, usually because their posted messages criticize the actions of public figures or corporations, are sometimes called cyberSLAPPs. Like a regular SLAPP, a cyberSLAPP aims at chilling free speech by intimidating critics with the prospect of defending an expensive lawsuit. But it also often aims at uncovering the identity of the anonymous critic. For more information on the court procedures a lawyer or party can use to identify an anonymous Internet speaker, see Potential Legal Challenges to Anonymity.

      Most SLAPPs ultimately would fail if litigated fully, but the SLAPP filer doesn't usually intend to do so. As previously mentioned, the point of a SLAPP is to intimidate and silence the target through the threat of an expensive lawsuit. Although the First Amendment to the U.S. Constitution protects freedom of speech, the U.S. legal system generally gives the benefit of the doubt to a party bringing a lawsuit until the fact-finding stage, and a winning defendant is not usually entitled to recover attorneys' fees to cover the expense of legal defense (as in some other countries). This means that, even if the claim ultimately fails, the process of defending against a SLAPP through the legal system can be a daunting and expensive prospect for many individuals.

      To guard against the chilling effect of SLAPPs, twenty-eight states, the District of Columbia, and one U.S. territory have enacted anti-SLAPP statutes. The U.S. jurisdictions with anti-SLAPP statutes are: Arizona; Arkansas; California; Delaware; District of Columbia; Florida; Guam; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Texas; Utah; Vermont; and Washington.

      Two other states, Colorado and West Virginia, do not have anti-SLAPP statutes, but their courts have recognized a defense to lawsuits that target activities aimed at petitioning the government for action on issues of public importance. These common law (i.e., judge-made) rules offer similar protections to those provided by some anti-SLAPP statutes.

      If you get sued in a state with an anti-SLAPP law, you may be able to dismiss the lawsuit at an early stage of the proceeding and recover your costs and attorneys' fees. If you live in a state with an anti-SLAPP law but someone sues you in a state without one, you may be able to argue that the laws of your state should apply. For example, if you are a journalist in California (which has an anti-SLAPP statute) writing about the local community impact of the actions of a corporation based in Iowa (which does not have an anti-SLAPP law), you may be able to argue that California law should apply even if the corporation files a lawsuit in Iowa.

      See the state pages for state-specific information on anti-SLAPP laws.

      Types of SLAPPs

      SLAPP suits come in many forms. Some of the common claims asserted in SLAPPs include:

      Defamation: Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). Defamation is the most common basis for a SLAPP suit. An individual or organization might file a defamation lawsuit in reaction to criticism or negative commentary published on- or offline, such as in a blog post, news report, letter to the editor, or speech at a public meeting, just to name a few. For more information, see the Defamation section.

      Interference with contract or economic advantage: This claim alleges that you intentionally interfered with a contract or other business relationship between the plaintiff and a third party that would have benefited the plaintiff economically. You also might see this claim referred to as "tortious interference with business relations," "tortious interference with contract," or some like-sounding phrase. In the publishing context, you often see this claim included along with a defamation claim. Like a defamation claim, individuals and organizations tend to bring this claim in response to criticism or negative commentary published on- or offline, or political activity that hampers the plaintiff's activities.

      Intentional infliction of emotional distress: This claim alleges that the defendant intentionally or recklessly committed some outrageous act that caused the plaintiff extreme emotional distress. As above, in the publishing context, you often see this claim included along with a defamation claim, and it often comes in response to criticism or negative commentary published on- or offline.

      Conspiracy: A conspiracy is an agreement between two or more persons to commit an illegal act. A plaintiff might claim that you and someone else conspired to commit defamation, to interfere with a contract, or to intentionally inflict emotional distress. Often, the plaintiff will not even identify who you allegedly have conspired with, naming instead an unspecified number of "John Does" or "Jane Roes" in the complaint.

      Keep in mind that, at least at the outset, calling a lawsuit a SLAPP is a subjective evaluation of the merit of its legal and factual claims. If someone sues you, the complaint will not identify itself as a SLAPP, and the person filing the lawsuit will vigorously deny characterization of it as a SLAPP. In the end, you cannot definitively establish that a lawsuit is a SLAPP until a court has ruled on the question.

      How To Protect Yourself Against a SLAPP

      Be aware that when you are speaking out on a matter of public controversy that involves significant private interests or the reputation of a government official, you may find yourself the target of a SLAPP. By being prepared, you can minimize your risk of being SLAPPed and continue to exercise your rights with confidence.

      Know your rights

      Under the Constitution, you have a right to free speech and to petition the government. Courts have interpreted these rights to form legal doctrines that protect the types of activities that attract SLAPPs. Note, however, that the Constitution generally does not protect defamatory, threatening, or harassing speech.

      Tell the truth

      Truth is an absolute defense to a defamation claim. You can protect yourself by not publishing rumors or scandalous innuendo, and you may want to avoid broad, sweeping generalizations or speculative rhetoric in favor of accurate, fact-based statements.

      Diligent fact-checking will make you a harder target for a SLAPP suit. Always cite to legitimate sources. Public records are an excellent source of solid factual information. For more information on how to use the law to obtain government records, see Access to Government Information. If you use Internet sources, print out the website page in case the information there changes at a later date.

      Even if what you publish ultimately turns out not to be true, you could still have a defense if the subject of your publication is a public figure, such as a celebrity, a government official, or someone who takes on an important role in the relevant debate or controversy. Public figures must prove that you made false statements about them with "actual malice" -- that is, you actually knew that your statements were false or recklessly disregarded their falsity.

      In a defamation lawsuit, a court will not hold you liable for stating an opinion. But, be aware that simply adding the words "in my opinion" to the beginning of a sentence will not necessarily help you. For example, if you write, "In my opinion, Mayor Jones is taking bribes from local developers," you could be liable for defamation, unless the statement is true. In addition, if your opinion implies the existence of facts that can be proven true or false, then it is a statement of fact and not opinion for legal purposes, and you could be held liable for publishing it if the underlying facts turn out to be false.

      For more information on how to protect yourself against a defamation claim, see the Defamation section.

      Insurance

      Insurance may be a good way to protect yourself from the expense of defending against a SLAPP. Your homeowners or renters insurance may cover damages and legal fees if someone sues you for defamation, invasion of privacy, or other legal claims. Most homeowners and renters policies, however, exclude coverage for "business pursuits," and a court might find that your online activities are a business pursuit if you earn advertising income from your site or blog or you collect money through other online means. The rules vary from state to state. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, media liability insurance might be a better option, although for many it is prohibitively expensive. See our Finding Insurance section for details on all these insurance-related issues.

      What To Do If You Think You've Been SLAPPed

      If someone files a lawsuit against you, and you believe it is a SLAPP, you should seek legal assistance immediately. Be aware of the deadline for filing a response to the complaint; if you miss the deadline, the court may enter a judgment against you without hearing your side of the case.

      As noted above, twenty-six states and one U.S. territory have enacted anti-SLAPP statutes to help protect citizens who speak out. These anti-SLAPP laws vary in effectiveness, and some have not yet been tested in a legal case. As a general matter, however, they attempt to shift some of the costs and burdens of litigation from you to the person filing the SLAPP suit. See State Law: SLAPPs for state-specific information.

      Some common provisions of anti-SLAPP statutes include:

      • Protection for speech on issues of public significance and/or activities aimed at petitioning the government for action on economic, social, and political issues;
      • Procedural mechanisms for obtaining early dismissal of a SLAPP;
      • Recovery of attorneys' fees and court costs incurred in defending against a SLAPP;
      • Expedited review of motions to dismiss in order to reduce the time and costs of litigation; and
      • Limits or stays on discovery while the court considers a motion to dismiss under the anti-SLAPP law.

      If you live in a state with an anti-SLAPP law, you will want to move quickly to get the case dismissed. It is a good idea to seek legal assistance in getting the case dismissed. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help. You'll want to find help as soon as you can because successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines.

      If your insurance company provides you with a lawyer who is not familiar with SLAPP cases, that lawyer may want to try to settle the case in order to minimize costs. This may sound like a good idea, but a settlement will likely include the condition that you do not discuss the matter in the future. With such a settlement, the SLAPP has been successful, because you cannot publicize the SLAPP filer's abuse of the legal system to chill public debate. Consider arranging to hire an attorney who is knowledgeable about SLAPP law.

      In addition to getting the case dismissed, you may want to consider going on the offensive. Eight states have statutes allowing "SLAPPback" suits, which are filed as counterclaims against a SLAPP or in a separate lawsuit. These states are California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah. A SLAPPback is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. Even if your state does not have a statute addressing SLAPPbacks, you may be able to sue your opponent for malicious prosecution or abuse of process under the common law of your state. However, you should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.

       

      State Law: SLAPPs

      To guard against the chilling effect of SLAPPs, twenty-eight states, the District of Columbia, and one U.S. territory have enacted anti-SLAPP statutes. The U.S. jurisdictions with anti-SLAPP statutes are: Arizona; Arkansas; California; Delaware; District of Columbia; Florida; Guam; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Texas; Utah; Vermont; and Washington. Some other states' courts (notably Colorado and West Virginia) have recognized anti-SLAPP-like protection as a matter of case law.

      State laws vary with regard to the protection offered against SLAPP suits. Consult the state sections below to learn more about whether the states listed have an anti-SLAPP law and, if so, how it works in practice. (Note that the guide does not include every state at this time.)

      Jurisdiction: 

      Subject Area: 

      Anti-SLAPP Law in Arizona

      Note: This page covers information specific to Arizona. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      A.R.S. § 12‑752 allows you to counter a SLAPP suit against you by filing a motion to dismiss. The statute also provides that the court shall grant the moving party costs and reasonable attorney fees, if the court grants the motion to dismiss.

      Activities protected by the Arizona Anti SLAPP Statute

      The Arizona anti-SLAPP statute applies to legal actions involving “a party’s exercise of the right of petition.” A.R.S. § 12‑751 defines “exercise of the right of petition” as

      any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:

      1. Made before or submitted to a legislative or executive body or other governmental proceeding.
      2. Made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding.
      3. Made for the purpose of influencing a governmental action, decision or result.

      The statute further defines “governmental proceeding” to include proceedings by an official, officer, or body of the state, political subdivision of the state, or federal government. Id. The definition excludes judicial proceedings. Id.

      If your statement does not fall within the definition of “exercise of the right of petition,” it will not be covered by the Arizona anti‑SLAPP statute. See Tennenbaum v. Arizona City Sanitary District, 799 F. Supp. 2d 1083 (D. Ariz. 2011) (holding that the Arizona anti‑SLAPP statute does not apply to a letter sent by legal counsel for the city Board of Directors or presentation at an open forum of the Board defending actions of the Board to the public because they were not part of a “recall effort” or “made before . . . a governmental proceeding” or “made for the purpose of influencing a governmental action, decision, or result”); Varela v. Perez, No. CV‑08‑2356‑PHX‑FJM, 2009 U.S. Dist. LEXIS 116027 (D. Ariz. Nov. 25, 2009) (holding that the Arizona anti‑SLAPP statute does not apply to “the filing of a criminal complaint with law enforcement”).

      The statute specifically provides that it does not:

      1. Affect, limit or preclude the right of the moving party to any remedy otherwise authorized by law.
      2. Apply to an enforcement action that is brought in the name of this state or a political subdivision of this state.
      3. Create any privileges or immunities or otherwise affect, limit or preclude any privileges or immunities authorized by law.
      4. Limit or preclude a legislative or executive body or a public agency from enforcing the rules of procedure and rules of order of the body or agency.

      A.R.S. § 12‑752(E).

      How to use the Arizona Anti-SLAPP statute

      The Arizona anti‑SLAPP statute gives you the ability to file a motion to dismiss within 90 days after service of the complaint or, in the court's discretion, at any later time on terms that the court deems proper. A.R.S. § 12‑752(C). (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a motion to dismiss under the anti-SLAPP statute.)

      The statute provides that, "[w]hen possible," the court must give "calendar preference" to an action filed under the statute and that the court must conduct an expedited hearing after the motion is filed and notice of the motion has been served as provided by court rule. A.R.S. § 12‑752(A).

      The court will grant the motion to dismiss unless the responding party shows that your exercise of the right of petition "did not contain any reasonable factual support or any arguable basis in law" and that your "acts caused actual compensable injury to the responding party." A.R.S. § 12‑752(B). "In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating facts on which the liability or defense is based." Id.

      If you request it, the court will also make findings about "whether the lawsuit was brought to deter or prevent the moving party from exercising constitutional rights and is thereby brought for an improper purpose" such as to harass or delay or increase the cost of litigation. Id. If the court finds that the lawsuit was brought for these purposes, then the statute states that you are "encouraged" to pursue additional sanctions "as provided by court rule." Id.

      What Happens If You Win A Motion To Dismiss Or Quash

      If you prevail on your motion to dismiss, the statute provides that the court "shall" award you "costs and reasonable attorney fees, including those incurred for the motion." The statute states that "costs" means "all costs that are reasonably incurred in connection with a motion to dismiss pursuant to this section" including "filing fees, record preparation and document copying fees, documented time away from employment to confer with counsel or attend case related proceedings, expert witness fees, travel expenses and any other costs that the court deems appropriate."

      However, if you do not prevail and the court finds that your motion to dismiss is "frivolous or solely intended to delay," the court "shall" award "costs and reasonable attorney fees to the prevailing party on the motion." In determining whether the motion to dismiss is frivolous, the court may consider whether the case involves novel issues of law. See Tennenbaum, 799 F. Supp. 2d at 1090.

      If you succeed in fending off a SLAPP lawsuit in Arizona, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Arizona does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in California

      Note: This page covers information specific to California. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use California's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Cal. Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.  In addition, if a party to a SLAPP suit seeks your personal identifying information, California law allows you to make a motion to quash the discovery order, request, or subpoena.

      Activities Covered By The California Anti-SLAPP Statute

      Not every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily to discourage speech about issues of public significance or public participation in government proceedings. To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Although people often use terms like "free speech" and "petition the government" loosely in popular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories of activities:

      1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
      2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
      3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
      4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

      Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third category above, which applies to a written statement in a public forum on an issue of public interest.

      Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so long as it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App. 2001).

      Many different kinds of statements may relate to an issue of public interest. California courts look at factors such as whether the subject of the disputed statement was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Certainly, statements educating the public about or taking a position on a controversial issue in local, state, national, or international politics would qualify. Some other examples include:

      • Statements about the character of a public official, see Vogel v. Felice, 127 Cal. App. 4th 1006 (2005);
      • Statements about the financial solvency of a large institution, such as a hospital, see Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006);
      • Statements about a celebrity, or a person voluntarily associating with a celebrity, see Ronson v. Lavandeira, BC 374174 (Cal. Super. Ct. Nov. 1, 2007);
      • Statements about an ideological opponent in the context of debates about the Israeli-Palestinian conflict, see Neuwirth v. Silverstein, SC 094441 (Cal. Super. Ct. Nov. 27, 2007); and
      • Statements about the governance of a homeowners association, see Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

      In contrast, California courts have found other statements to be unrelated to an issue of public interest, including:

      • statements about the character of a person who is not in the public eye, see Dyer v. Childress, 147 Cal. App. 4th 1273, 1281 (2007); and
      • statements about the performance of contractual obligations or other private interests, see Ericsson GE Mobile Communs. v. C.S.I. Telcoms. Eng’rs. 49 Cal. App. 4th 1591 (1996).

      Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging public participation, you do not need to show that the SLAPP actually discouraged you from participating or speaking out. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech.

      Protections for Personal Identifying Information Sought in a SLAPP suit

      In addition to providing a motion to strike, California law also allows a person whose identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or modify the subpoena seeking your personal identifying information so you do not have to provide that information. Cal. Civ. Pro. Code § 1987.1.

      How To Use The California Anti-SLAPP Statute

      The California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

      One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days after filing. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

      In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out of a protected speech or petition activity (discussed above). Assuming you can show this, the court will then require the plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is not meant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able to make this showing, and the court will dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.

      If the court denies your motion to strike, you are entitled to appeal the decision immediately.

      In addition to creating the motion to strike, the statute also allows a person whose personal identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information. 

      When you make your motion to quash, the court "may" grant your request if it is "reasonably made." In reviewing your motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she must present evidence to support all of the elements of the underlying claim (or, at least, all of the elements within the plaintiff's control).  See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If the plaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.

      If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and request assistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit in California, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the First Amendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP in California.

      What Happens If You Win A Motion To Strike

      If you prevail on a motion to strike under California's anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).

      Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a "SLAPPback" suit against your opponent. A "SLAPPback" is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code § 425.18 (setting out certain procedural rules for "SLAPPback" suits). Section 425.18 contemplates bringing a SLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring a SLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.

      If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion to award expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion "in bad faith or without substantial justification," or if at least one part of the subpoena was "oppressive." Cal. Civ. Pro. Code § 1987.2(a). But note that if you lose your motion to quash, and the court decides that your motion was made in bad faith, you may have to pay the plaintiff's costs of opposing the motion.

      If you successfully quash a California identity-seeking subpoena that relates to a lawsuit filed in another state, the court "shall" award all reasonably expenses incurred in making your motion - including attorneys' fees - if the following conditions are met:

      • the subpoena was served on an Internet service provider or other Section 230 computer service provider;
      • the underlying lawsuit arose from your exercise of free speech on the Internet; and
      • the plaintiff failed to make his prima facie showing.

      Cal. Civ. Pro. Code § 1987.2(b).

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      Anti-SLAPP Law in Colorado

      Note: This page covers information specific to Colorado. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      While Colorado has no dedicated anti-SLAPP statute, Colorado courts have developed procedures that may provide some relief if you believe you are facing a SLAPP suit. If the lawsuit against you is based on your exercise of your "First Amendment right to petition the government for redress of grievances," the Colorado court will subject the plaintiff's claims against you to elevated scrutiny, making it easier for you to get those claims dismissed. Protect Our Mountain Environment, Inc. v. The District Court In and For the County of Jefferson, 677 P.2d 1361, 1368 (Colo. 1984) (a.k.a. "POME"; the special motion is generally referred to as a "POME motion," after the name of this case). With some possible exceptions, you will not be able to recover your attorneys' fees or court costs after a successful POME motion.

      Activities Covered By Colorado's POME Motion

      The POME decision on its face covers a very narrow range of conduct. Specifically, it protects the First Amendment right to petition the government for relief of legitimate grievances without fear of retaliation. In POME, an environmental activism group opposed a proposed real-estate development. The group brought a case against both the developer and the county board that had approved the project. The trial court and subsequent appellate court both ruled against the environmental group. The developer then sued the environmental group, claiming that the group had abused the legal process by challenging the proposed development.

      The Colorado Supreme Court, in its decision on the developer's lawsuit against the environmental group, ruled that the First Amendment right to petition requires protection against this kind of lawsuit. Thus, in Colorado, if someone sues you because you previously filed a legitimate (non-frivolous) lawsuit, or otherwise petitioned the government for action, a POME motion might help you get the new lawsuit dismissed.

      Subsequent cases have helped to clarify what sorts of "petitioning" are protected by POME. For example, attending public hearings to oppose a construction project is protected. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Repeated lawsuits in a contentious divorce are also within POME's purview. In re Foster, 2011 WL 2139136 (Colo., May 23, 2011). However, the outer limits of POME's protections remain unclear.

      A 1986 Colorado Supreme Court decision suggests that at least some other lawsuits (like some libel claims) may require POME scrutiny as well. Concerned Members of Intermountain Rural Elec. Ass'n v. District Court, County of Jefferson, 713 P.2d 923 (Col0. 1986). See also James H. Moore & Associates Realty v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994) (implying that POME may apply to other First Amendment rights). However, a May 2011 trial court ruling (which is not binding in other cases) states that POME only applies if you are being sued for "misuse or abuse of the administrative or judicial processes of the government."  It is therefore an open question as to whether POME would apply to defamation claims or lawsuits that do not alleged abuse of governmental process.

      How To Use Colorado's POME Procedure

      If you are sued over conduct (like a past lawsuit) that you believe may be protected by POME, you can file a motion to dismiss under C.R.C.P. 12(b)(5), raising the defense that your past conduct was protected by the First Amendment. At that point, the person suing you will have to satisfy POME's three-part test:

      • That your past lawsuit, etc. was "devoid of reasonable factual support" or "lacked any cognizable basis in law";
      • That your primary purpose was to "harass," or to "effectuate some other improper objective"; and
      • That your past petitioning activity "had the capacity to adversely affect a legal interest" of the person now suing you.
      If the person suing you cannot satisfy all three parts of the test, the case against you will be dismissed. In the hearing on your POME motion, both sides can present all relevant materials and information.

      What Happens If You Win A POME Motion

      Generally, you will NOT eligible for an award of attorneys' fees if you win a POME motion. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Colorado does have a statute through which a defendant can receive costs and fees, but only if the lawsuit is dismissed in response to a standard motion to dismiss under CRCP 12(b). For this reason, you may wish to pursue other defenses before turning to POME; if you can win a motion to dismiss without relying on POME, you may be able to recover your costs and fees. See CRSA § 13-17-201.1

      SLAPP-ing back

      If you are facing a SLAPP-suit that does not fall within POME's protections, you may consider filing an abuse of process claim in response. Such a claim would require you to show

      • An ulterior purpose for the lawsuit (such as, silencing your First Amendment rights),
      • Willful action that is improper "in the regular course of the proceedings," and
      • Actual damages.

      See James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994). Remember that pursuing any legal claim can be a long, expensive process. Note also that your abuse of process claim would itself be subject to POME's standard.

      1 You might be eligible for a potential award of attorneys' fees following a successful POME motion if neither you nor the plaintiff have presented evidence to the court beyond what is included in the plaintiff's complaint.  In this situation, the statute providing for an award of fees and costs following a successful Rule 12(b) motion may apply.  However, because you will be unable to control the scope of the evidence presented by the plaintiff in response to a POME motion, it is unlikely that this situation will occur.

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      Anti-SLAPP Law in Florida

      Note: This page covers information specific to Florida. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      Florida has two narrow anti-SLAPP statutes, but neither is likely to protect bloggers and non-traditional journalists engaging in online publishing activities. Fla. Stat. § 768.295 protects against SLAPPs brought by government entities in retaliation for exercising one's right to petition the government. Fla. Stat. § 720.304 protects a homeowner's right to petition the government when acting to "address matters concerning [his or her] homeowners' association." It applies to SLAPPs brought by individuals, business associations, and government entities.

      Activities Covered By The Florida Anti-SLAPP Statutes

      Fla. Stat. § 768.295 applies to SLAPPs brought by the government in response to the exercise of "the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities" of Florida.

      Fla. Stat. § 720.304 (4) applies only to homeowners in a homeowners' association. It protects a homeowner's exercise of "the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities" of Florida. The statute, which applies to SLAPPs brought by individuals, business associations, and government entities, further explains that it is aimed at protecting against lawsuits arising out of a homeowner's "appearance and presentation before a governmental entity on matters related to the homeowners' association."

      The CMLP has not identified any relevant case law concerning how either of these statutes apply to online speech activities. Based on the language of the statute, however, it seems unlikely that either one would protect online activity that occurs outside of official government proceedings. On the other hand, these statutes might protect you if you made statements on a government-operated forum, or if you used your online platform to call on the government to address an issue of public concern (or, in the case of the latter statute, an issue related to a homeowners' association).

      How To Use The Florida Anti-SLAPP Statute

      If you are served with a complaint that you believe to be a SLAPP (as described in the section above), you should seek legal assistance immediately. Under Florida's anti-SLAPP laws, you can file a motion to dismiss or a motion for summary judgment under section 768.295 (5) in the case of a government SLAPP or section 720.304 (4)(c) in the case of a homeowner-related SLAPP. In either situation, after the party suing you has filed its response, the court will hear your motion "at the earliest possible time."

      What Happens If You Win Your Motion

      If you prevail on a motion to dismiss or a motion for summary judgment under the anti-SLAPP statutes, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. In addition, the court may award you any damages sustained as a result of the lawsuit. Further, if the court rules for you under the homeowner anti-SLAPP law, it may award you treble damages (i.e., 3X your actual damages).

      If you succeed in fending off a SLAPP in Florida, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Florida does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Georgia

      Note: This page covers information specific to Georgia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use Georgia's anti-SLAPP law to counter a SLAPP filed against you, but only in limited situations. Ga. Code Ann., § 9-11-11.1 allows a defendant to move to dismiss a SLAPP, provided that the exercise of free speech that prompted the lawsuit is about "an issue under consideration or review by a governmental body." If the court grants your anti-SLAPP motion, you may recover expenses and attorneys' fees from the SLAPP filer.

      Activities Covered By The Georgia Anti-SLAPP Statute

      To challenge a lawsuit as a SLAPP in Georgia, you need to show that the plaintiff is suing you for an act "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern." Ga. Code Ann., § 9-11-11.1(b). The statute further defines this as

      any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

      Ga. Code Ann., § 9-11-11.1(c). This definition limits your protection under the anti-SLAPP statute to (1) statements made in an official government proceeding, (2) statements relating to an issue currently under consideration or review in an official government proceeding, and (3) statements calling for such official review or consideration.

      Categories 2 and 3 are the most important for online publishers. It is important to note what is not included here: If someone sues you for making statements on your website or blog about a topic or issue of ordinary public interest that is not under government consideration or review, and you are not calling for such consideration or review, then you are not entitled to bring an anti-SLAPP motion to dismiss under section 9-11-11.1.

      For example, in Berryhill v. Georgia Community Support & Solutions, 281 Ga. 439 (2006), Shirley Berryhill allegedly made statements in web postings and emails complaining about the poor treatment and care provided to her handicapped son by a healthcare facility. The Georgia Supreme Court held that, although Ms. Berryhill's statements pertained to a matter of public concern, she could not invoke the anti-SLAPP statute because her statements did not relate to an existing official proceeding or request the initiation of an official investigation or proceeding.

      How To Use The Georgia Anti-SLAPP Statute

      When a plaintiff files a lawsuit against someone for an act which reasonably could be viewed as "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" (as defined above), the anti-SLAPP law requires the plaintiff and his or her attorney to file written verifications under oath certifying that the claim is well grounded in fact and is warranted by existing law or a good faith argument for the modification of existing law. Ga. Code Ann., § 9-11-11.1(c).

      If you are sued, and you believe that your speech fits the criteria outlined in the section above, you should bring this verification requirement to the attention of the plaintiff or his or her attorney. If the plaintiff fails to make the required verifications within ten days of being notified, the court must dismiss the case.

      If the plaintiff submits the required verifications, you can file a motion to dismiss the case for improper verification in violation of Ga. Code Ann., § 9-11-11.1(b). Once you have made the motion, the court must hear it within thirty days, barring court emergencies. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

      In deciding the motion, the court will first consider whether your speech fits the criteria described in the section above. If it finds that you are eligible to make the motion, the court will then examine the verifications and documents submitted by the plaintiff. After this review, if the court finds that the plaintiff or attorney either did not believe that the legal claim was legitimate or brought the lawsuit against you for an improper purpose, then the court will grant your motion to dismiss. Alternatively, the court will grant your motion to dismiss if the judge finds that your statements were made in good faith. See Atlanta Humane Society v. Harkins 278 Ga. 451, 455-56 (Ga. 2004). If the plaintiff's case is strong, however, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

      When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

      What Happens If You Win A Motion To Strike or Dismiss

      If you prevail on a motion to dismiss under Georgia's anti-SLAPP law, the court will dismiss the lawsuit against you, and you can ask the court to impose sanctions on the other side. These sanctions may include your expenses in defending against the suit, including reasonable attorneys' fees.

      In addition, if you succeed in fending off a SLAPP in Georgia, you may be able to bring a claim for malicious prosecution or abuse of process against the SLAPP filer. While Georgia does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Illinois

      Note: This page covers information specific to Illinois. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use Illinois's anti-SLAPP statute, known as the Citizen Participation Act (CPA), to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike or dismiss a complaint filed against you based on "[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation in government." If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

      Activities Covered By The Illinois Anti-SLAPP Statute

      To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for "any act or acts in furtherance of [your] rights of petition, speech, association, or to otherwise participate in government." 735 Ill. Comp. Stat. 110/15 (scroll down). Such actions are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."

      The Illinois Supreme Court has interpreted the CPA narrowly. According to the 2012 case Sandholm v. Kuecker, there are two scenarios in which the CPA does not provide relief:

      1. If the defendant's conduct was "not genuinely aimed at procuring favorable government action, result, or outcome," the CPA does not apply. 735 Ill. Comp. Stat. 110/15. This test focuses on the defendant's conduct. 
      2. The second test looks at the plaintiff's intent in bringing the lawsuit. According to the Illinois court in Sandholm, "if the plaintiff's intent in bringing the suit is to recover damages for alleged defamation [or other intentional torts] and not to stifle or chill defendants' rights of petition, speech, association, or participation in government," the CPA does not apply.  Sandholm, at ¶ 42. Later in the decision, the Illinois court summarized its ruling: "If a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP . . . plaintiff's suit would not be subject to dismissal under the [CPA]." Id. at ¶ 53.
      Sandholm did not explicitly clarify the full extent of defendants' conduct that falls within the CPA: There remains some uncertainty about how broadly to construe the "petition, speech, association, or to otherwise participate in government" language. There is a plausible argument that the CPA covers a broad category of speech that seeks some kind of government action. The defendants in Sandholm had mounted a public campaign against a local high school coach, including a website built by the defendants as well as comments left on third-party news and commentary web sites. The court assumed that, but for the plaintiff's-intent test, the defendants' conduct would have qualified under the statute.

      The CMLP has not identified any further Illinois case law interpreting this language or applying it to online publishing activities. If you know about any relevant cases, please contact us.

      How To Use The Illinois Anti-SLAPP Statute

      The CPA gives you the ability to file a motion to strike or dismiss a complaint brought against you for exercise of the aforementioned rights. The court must hear the motion within ninety days of your filing it, and it must grant the motion unless it finds that the SLAPP filer has produced "clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act." 735 Ill. Comp. Stat. 110/20 (scroll down).

      While the motion is pending, your opponent generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

      The CPA also allows a party who believes it has been the subject of a SLAPP to get a speedy decision on its motion to dismiss and to file an expedited appeal if the court denies the motion.  Section 20(a) of the CPA states:

      On the filing of any motion as described in Section 15, a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule. 

      When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

      What Happens If You Win A Motion To Dismiss

      If you prevail on a motion to strike or dismiss under the CPA, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs incurred in connection with the motion. See 735 Ill. Comp. Stat. 110/25 (scroll down).

      If you succeed in fending off a SLAPP in Illinois, you may be able to bring a claim for malicious prosecution against the SLAPP filer. While Illinois does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. Previously, an Illinois appeals court held that bringing a SLAPP does not amount to malicious prosecution under Illinois law, see Levin v. King, 648 N.E.2d 1108, 1113 (Ill. App. Ct. 1995), but that ruling occurred before the Illinois legislature enacted the CPA. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Indiana

      Note: This page covers information specific to Indiana. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use Indiana's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to dismiss a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-1(a). If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

      Activities Covered By The Indiana Anti-SLAPP Statute

      To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an act or omission "in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-5 (1). You also need to establish that your action was "taken in good faith and with a reasonable basis in law and fact." Ind. Code § 34-7-7-5 (2).

      Indiana courts have interpreted the "right of petition or free speech . . . in connection with a public issue or an issue of public interest" to include media coverage of newsworthy events. "Newsworthiness" is a flexible concept, and it is sometimes difficult to predict what topics a court will deem to fit the definition. But, in all likelihood, news reports and even informal posts about current events and significant economic, political, and social issues would fit the bill.

      In contrast, statements and postings of a more personal character are less likely to be "in connection with a public issue or an issue of public interest." For example, in Hamilton v. Prewett, 860 N.E.2d 1234, 1247 (Ind. App. 2007), an Indiana appeals court held that the anti-SLAPP law did not protect a website operator who parodied a local business man because the website did not address a "public issue."

      To prevail on a motion to dismiss under the anti-SLAPP statute, you will also need to show that your action was "lawful." See Ind. Code § 34-7-7-9 (d). Therefore, if your speech constitutes defamation, extortion, or some other unlawful act, the anti-SLAPP law does not protect you.

      How To Use The Indiana Anti-SLAPP Statute

      The Indiana anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition or free speech (as defined above). The court must hear and rule on the motion within 180 days of your filing it.

      When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

      When filing a motion to dismiss, you must specify the public issue that prompted your speech or petition activity. See Ind. Code § 34-7-7-9(b). You also need to provide evidence establishing that your act was taken in good faith and with a reasonable basis in law and fact. After the motion is filed, the court will establish a schedule for taking discovery relevant to the motion -- that is, exchanging documents, taking deposition, and answering written questions on the issue of whether your action was lawfully taken in furtherance of your right of petition or speech.

      What Happens If You Win A Motion To Dismiss

      If you prevail on a motion to strike or dismiss under the Indiana anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Ind. Code § 34-7-7-7.

      If you succeed in fending off a SLAPP-type lawsuit in Indiana, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Indiana does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Massachusetts

      Note: This page covers information specific to Massachusetts. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use Massachusetts' anti-SLAPP statute, found at M.G.L. c. 231, § 59H, to counter a SLAPP suit filed against you, at least under some circumstances. The statute allows you to file a special motion to dismiss a complaint filed against you based on your "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." The statute, by its terms, does not apply to speech activity that is not connected to petitioning the government, but Massachusetts courts have interpreted petitioning activity to include some online publishing activities. If a court grants a motion to dismiss under the anti-SLAPP statute, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

      Activities Covered By The Massachusetts Anti-SLAPP Statute

      To challenge a lawsuit as a SLAPP in Massachusetts, you need to show that the plaintiff is suing you for "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." M.G.L. c. 231, § 59H. The statute defines "a party’s exercise of its right of petition” to include a written or oral statement that is:

      • "made before or submitted to" a government body;
      • "made in connection with an issue under consideration or review" by a government body;
      • "likely to encourage consideration or review of an issue" by a government body; 
      • "likely to enlist public participation in an effort to effect such consideration" by a government body; or
      • "any other statement falling within constitutional protection of the right to petition government."

      To make use of Massachusetts' anti-SLAPP motion, you will need to show that your speech activity fits into one of these categories. You will also need to prove that your exercise of the right of petition was the the sole cause of the plaintiff's lawsuit against you. If the plaintiff's lawsuit involves other issues, such as contractual obligations, you likely will not succeed on an anti-SLAPP motion. See Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 942 (Mass. 1998).

      Be aware that the statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if aimed at influencing government policy or building support for a campaign to influence government policy.

      However, an important Massachusetts Supreme Judicial Court case suggests that reporters who publish objective, factual news accounts won't qualify for the protections of the anti-SLAPP law, even if those accounts relate to matters and issues under review by government bodies and are aimed at enlisting public participation around those issues. See Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010). In Fustolo, a real estate developer sued a reporter for a community newspaper for defamation over articles reporting on his properties and community opposition to his development plans. The complaint alleged that the articles caused "[w]idespread opposition . . . in connection with [his] development plans and variance petition" and "[a]s a direct and proximate result, [h]e was compelled to withdraw the application for variances prior to a hearing scheduled to take place before the Boston Board of Appeal on July 25, 2006.

      Despite this connection with government scrutiny of the plaintiff's development plans, the Massachusetts SJC held that the articles did not qualify as "petitioning activity" on the reporter's "own behalf." Among other factors, the court noted that the articles in question were objective and did not reflect the reporter's personal opinions. It also determined that the reporter's subjective personal interest in the development issues she wrote about was not relevant to determining whether the articles themselves were petitioning activity.  The court noted, however, that merely receiving compensation for her work did not deprive the reporter of the protections of the Massachusetts anti-SLAPP law.

      Another potentially important case for website operators is MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003).  In this case, Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. The site functioned as an interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars. It included information on education reform, a citizen letters section, cartoons, quotes, a link inviting public participation by email, and satirical articles. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a "dictionary entry" for the term "Nazi" that referenced MacDonald. A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community." 

      The Supreme Judicial Court's decision in Fustolo v. Hollander, discussed above, casts substantial doubt on the continued validity of MacDonald v. Paton, at least to the extent it suggested that providing a forum for others to speak could be "petitioning activity" on one's "own behalf" under the Massachusetts anti-SLAPP law.

      If you are sued in federal court in Massachusetts, you might not be able to invoke the anti-SLAPP statute. Some federal courts in Massachusetts have held that the anti-SLAPP statute is a procedural rule that is inapplicable in federal court. See, e.g., Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312, 316 (D. Mass. 2003). Other courts might disagree, however.

      How To Use The Massachusetts Anti-SLAPP Statute

      The Massachusetts anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition.

      If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to dismiss under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

      One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a special motion to dismiss, the court must hear and rule on the motion "as expeditiously as possible." M.G.L. c. 231, § 59H. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

      In ruling on a motion to dismiss, a court will first consider whether you have established that the lawsuit arises solely out of your right to petition (defined above). Assuming you can show this, the court will then require the plaintiff to introduce evidence showing that the "exercise of [your] right to petition was devoid of any reasonable factual support or any arguable basis in law" and that your acts caused actual injury. M.G.L. c. 231, § 59H. If the plaintiff cannot show this, the court must grant your motion to dismiss. On the other hand, if the plaintiff can make this showing, the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

      What Happens If You Win A Motion To Dismiss

      If you prevail on a motion to dismiss under the Massachusetts anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. M.G.L. c. 231, § 59H.

      If you succeed in fending off a SLAPP in Massachusetts, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Massachusetts does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.

      If you file a special motion to dismiss under Massachusetts' anti-SLAPP law and the court denies the motion, you have an immediate right to appeal the denial.  See Fabre v. Walton, 436 Mass. 517 (2002).

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      Anti-SLAPP Law in Michigan

      Note: This page covers information specific to Michigan. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      On August 19, 2010, the Michigan House of Representatives passed House Bill No. 5036 which provides that if a defendant in a lawsuit makes a motion to dismiss, the court shall dismiss the case if either of the following applies:

      a. The action was based on the defendant's exercise of constitutionally protected right to petition the government and the communication was aimed at achieving some governmental or electoral action, result, or outcome, or

      b. The action is based on the defendant's exercise of the constitutional right to free speech.

      The plaintiff can avoid dismissal of the complaint if they can make a prima facie case that the purpose of the lawsuit is not to harass or intimidate or interfere with free speech and one or both of the following:

      a. The defendant made a statement that was false with reckless disregard for the truth or knowing it was false, or

      b. The defendant revealed something in the communication that they were prohibited by law from revealing. 

      As of February 2011, it does not appear that the state senate had passed the bill or that it has otherwise become law in Michigan.  If you have information about the legislation, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

      If you succeed in fending off a SLAPP-type lawsuit in Michigan,you may be able to bring a claim of malicious prosecution against the original plaintiff. While Michigan does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Nevada

      Note: This page covers information specific to Nevada. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      Nevada's Anti-SLAPP statute is codified as Nev. Rev. Stat. 41.635-70. There is little case law interpreting it. However, Nevada courts have held that Nevada's Anti-SLAPP statute should be read similarly to California's, upon which it is based.

      Activities Covered By The Nevada Anti-SLAPP Statute

      According to the language of Nevada's Anti-SLAPP statute, a defendant may file a special motion to dismiss "if an action is brought against a person based upon a good faith communication in furtherance of the right to petition." Nev. Rev. Stat. 41.660(1). One case, John v. Douglas County School District, 219 P.3d 1276 (2009), found that the Nevada statute should be construed just as the California statute, upon which it was based. However, in Metabolic Research, Inc. v. Ferrell, D.C. No. 2:09-cv-02453 (D. Nev. 2009), the U.S. District Court for Nevada determined that the statute only protects those citizens who are engaging in the right to petition-and only when petitioning a government official.

      According to John v. Douglas County School District, Nevada's anti-SLAPP statute bars claims from people who attempt to abuse other citizen's rights who attempt to petition the government and allows for claims against citizens who do not petition the government in good faith. The purpose is to prevent citizens from being the subject of costly litigation in an attempt to abridge their right to free speech under both the Nevada and U.S. Constitutions. John, 219 P.3d at 1282. A "good faith communication" includes:

      1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;
      2. Communication of information or a complaint to a legislator, officer or employee of the Federal government, this state or a political subdivision of Nevada, regarding a matter reasonably of concern to the respective governmental entity; or a
      3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law, which is truthful or is made without knowledge of its falsehood.

      Nev. R. Stat. 41.637.

      The types of suits that have been successfully dismissed under Nevada's Anti-SLAPP statute are:

      • Statements by public utility board members who discussed the viability of a contract: Rebel Communications, LLC v. Virgin Valley Water Dist., No. 2:10-CV-0513-LRH-PAL (D. Nev. Mar. 20, 2012).
      • State litigation, an advisory opinion from the Financial Institutions Division, and a complaint filed with the Financial Institutions Division: Nevada Association Services, Inc. v. Premsrirut, No. A-11-637300-C, 2011 WL 7803899 (Nev. Dist. Ct. Aug. 24, 2011).
      • A complaint made about an employee of a political subdivision (a school district in Nevada), and an article published in a school newspaper: Archey v. Nelson, Case No. 35671, 2010 WL 3711513 (Nev. Dist. Ct. Aug. 10, 2010).

      How To Use The Nevada Anti-SLAPP Statute

      If a SLAPP suit is filed against you, you may request a special motion to dismiss the complaint. Additionally, the attorney general or chief legal officer of the political subdivision of the state may defend the person against whom the suit has been filed. If you are served with what you believe to be a SLAPP suit, you should seek legal assistance immediately in order to maneuver the complicated legal process and to avoid missing critical deadlines. The special motion to dismiss must be filed within sixty (60) days of service of the complaint.

      Once filed, the special motion to dismiss is considered at the summary judgment standard, and all discovery will be stayed. A judge will rule on the motion within 30 days. However, if the motion is denied, you do not have the ability to file for an interlocutory appeal. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir. 2012).

      What Happens If You Win A Motion To Dismiss

      If you are successful, the court will award reasonable costs and attorney's fees, unless the Attorney General, or the chief legal officer or the attorney of a political subdivision, provided the defense. You may also bring a separate action to recover compensatory damages, punitive damages, and attorney's fees and costs of bringing the separate action. Nev. R. Stat. 41.670.

      It is important to note that Nevada's Anti-SLAPP statute is a "free from judgment" statute, not a "free from litigation" statute. The Ninth Circuit recently interpreted the statute in a similar way as California's statute, stating that those who prevail on an anti-SLAPP motion are immune from civil liability, but are not immune from a lawsuit. Metabolic Research, 693 F.3d at 802. Those defendants facing litigation can request fees and costs at the conclusion of the case. Id.

      The Citizen Media Law Project would like to thank the Randazza Legal Group for preparing this section. The contents of this page should not be considered to be legal advice.

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      Anti-SLAPP Law in New Jersey

      Note: This page covers information specific to New Jersey. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      New Jersey does not have an anti-SLAPP statute. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

      Although New Jersey has no anti-SLAPP statute, New Jersey courts have shown concern about the impact of SLAPPs. As a result, they have allowed a defendant who successfully defeats a SLAPP-type suit to seek damages from the SLAPP filer on a claim of malicious use of process, akin to California's "SLAPPback" claim. Thus, if you successfully fend off a SLAPP-type suit in New Jersey, you may want to consider a malicious use of process claim. If you are interested in this route, you should consult an attorney to see whether such a claim may be viable in your case.

      How to Make a Malicious Use of Process Claim in New Jersey

      New Jersey's malicious use of process claim consists of four elements that you must prove:

      • The SLAPP filer brought a claim against you without probable cause;
      • The SLAPP filer acted with malice;
      • The SLAPP suit was resolved in your favor; and
      • You suffered a "special grievance."

      You could establish the first and third element by showing that you succeeded in getting a SLAPP-type suit dismissed, assuming that the court indicated in the process that the SLAPP filer's claim was lacking legal and/or factual bases. You could prove malice by showing that the SLAPP filer sued you in retaliation for your exercise of your right of petition or free speech. See LoBiondo v. Schwartz, 323 733 A.2d 516, 534 (N.J. Super. Ct. App. Div. 1999). Lastly, New Jersey courts have ruled that being SLAPPed constitutes a "special grievance." See Baglini v. Lauletta, 768 A.2d 825, 836-37 (N.J. Super. Ct. App. Div. 2001); LoBiondo, 733 A.2d at 534.

      New Jersey courts have not yet applied the malicious use of process claim to SLAPPs brought against bloggers or non-traditional journalists. Given the language the courts have used in describing the threat of SLAPPs to citizens' rights of petition and free speech, however, it seems entirely possible that the courts would be willing to extend the claim to these types of SLAPPs.

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      Anti-SLAPP Law in New York

      Note: This page covers information specific to New York. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      New York's anti-SLAPP laws, found at N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h), offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body (like zoning permits) over efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission. The statute does not protect "free speech" in the abstract; it only protects bloggers, non-traditional journalists, and other online publishers when they address this narrow class of issues (i.e., the granting or denial of a public permit or application).

      Activities Covered By The New York Anti-SLAPP Statute

      To use New York's anti-SLAPP law, you must show two things. First, you must show that the plaintiff suing you is a "public applicant or permittee." Second, you must show that the plantiff's claim against you is an "action involving public petition and participation."

      The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.

      The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.

      How To Use The New York Anti-SLAPP Statute

      The New York anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you by a public applicant or permittee over your efforts to report on, comment on, challenge, or oppose an application to the government.

      If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may be able to recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

      In ruling on a motion to dismiss under the anti-SLAPP laws, a New York court will determine whether the plaintiff is a "public applicant or permittee" and whether the lawsuit is an "action involving public petition and participation," as described above. If you can establish these two things, then the court will require the plaintiff to demonstrate that its lawsuit "has a substantial basis in law." If the plaintiff fails to do so, then the court will grant your motion and dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

      Note that, unlike in many states, New York's anti-SLAPP motion does not halt discovery (i.e., fact gathering for trial). Thus, you may incur additional litigation expenses while the court hears and decides your motion.

      What Happens If You Win A Motion To Dismiss

      If you prevail on a motion to dismiss under the New York anti-SLAPP law, the court may award you one or more of the following kinds of damages: costs and attorneys' fees, other compensatory damages, and punitive damages. To receive costs and attorneys' fees, you must show that the plaintiff's lawsuit against you lacked a basis in fact and law. To get compensatory damages (i.e., damages that compensate you for any other harm you suffered as a result of the SLAPP), you must also show that the plaintiff was maliciously attempting to impair your right to free speech or petition. Further, if you can show that if that the attempt to impair your rights was the only reason the plaintiff sued you, you may be entitled to punitive damages.

      Note that even if you are able to establish that you meet the requirements for any or all of the types of damages listed above, the court does not have to award those damages. All anti-SLAPP damages, including costs and attorneys' fees, are awarded at the court's discretion under New York law.

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      Anti-SLAPP Law in North Carolina

      Note: This page covers information specific to North Carolina. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in North Carolina. If you know about an anti-SLAPP law in North Carolina, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

      If you succeed in fending off a SLAPP-type lawsuit in North Carolina, you may be able to bring a claim of malicious prosecution against the original plaintiff. While North Carolina does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Ohio

      Note: This page covers information specific to Ohio. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Ohio. If you know about an anti-SLAPP law in Ohio, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

      If you succeed in fending off a SLAPP-type lawsuit in Ohio, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Ohio does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Pennsylvania

      Note: This page covers information specific to Pennsylvania. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      Pennsylvania has a narrow anti-SLAPP statute, found at 27 Pa. Cons. Stat. §§ 7707, 8301-05, that only applies to those petitioning the government over environmental issues. While the statute does not protect "free speech" in the abstract, bloggers and non-traditional journalists who address environmental issues may be able to take advantage of it. The statute provides for a special motion and hearing to establish entitlement to immunity. If a court rules in your favor on this motion, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

      Activities Covered By The Pennsylvania Anti-SLAPP Statute

      To challenge a lawsuit as a SLAPP in Pennsylvania, you need to show that the plaintiff is suing you over an "an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation." The statement must also be "aimed at procuring favorable governmental action."

      Pennsylvania courts have interpreted this language to encompass both direct communications with the government and statements to third parties that are ultimately aimed at procuring favorable government action on an environmental issue. Thus, statements calling government or public attention to any alleged environmental violation or seeking to influence the government in its consideration or review of an environmental issue are protected. Some examples of protected communications made to non-government actors include: "a letter to the editor of a local newspaper expressing concern about the possibility of contamination at a proposed development, a statement made to a newspaper reporter about the possibility of contamination at a proposed development, or a signboard which protests the development of a wetland." Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424, 433 n.11 (Pa. Cmmw. Ct. 2005).

      There are, however, exceptions to this immunity, spelled out in 27 Pa. Cons. Stat. § 8302 (b). You are not entitled to immunity if:

      • your statements were "knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity";
      • your statements were "made for the sole purpose of interfering with existing or proposed business relationships"; or
      • your statements are "later determined to be a wrongful use of process or an abuse of process."

      How To Use The Pennsylvania Anti-SLAPP Statute

      The Pennsylvania anti-SLAPP statute gives you the ability to file a special motion requesting a determination of immunity under the Act. After you file the motion, the court must hold a hearing to make this determination.

      At the hearing, the court will inquire into whether the lawsuit is based on "a communication to a government agency relating to enforcement or implementation of an environmental law or regulation" (defined above). Assuming you can show this, the court will require the plaintiff to introduce evidence showing that your statements fall into one of the three exceptions outlined above. If the plaintiff cannot do this, the court will dismiss the lawsuit against you. On the other hand, if the plaintiff's case is strong, the court will deny your motion. If the court denies your motion, you may appeal the judge's ruling immediately, and the plaintiff will not be able to engage in "discovery" (i.e., fact gathering for trial) until after the appeals court decides the appeal.

      When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

      What Happens If You Win Your Motion

      If you prevail on your motion under the Pennsylvania anti-SLAPP statue, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. If you are only partially successful, the court may award you either full or partial fees and costs, at its discretion. See 27 Pa. Cons. Stat. § 7707.

      If you succeed in fending off a SLAPP in Pennsylvania, you may be able to bring a claim of malicious use of civil process against the SLAPP filer. While Pennsylvania does not explicitly recognize a "SLAPPback" claim, the elements of this claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Texas

      Note: This page covers information specific to Texas. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      The Texas Citizens Participation Act, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys' fees, court costs, and possibly punitive damages against the party that filed the lawsuit.

      The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a "matter of public concern"; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests."

      Activities Protected By The Texas Anti-SLAPP Statute

      To challenge a lawsuit under the Citizens Participation Act, you must show that it is based on your act or acts of "communication" (defined as the "making or submitting" of any "statement or document in any form or medium") in connection with your rights of association, petition, or free speech. The statute broadly defines these rights:

      • (a) "Right of association" refers to people collectively "express[ing], promot[ing], pursu[ing], or defend[ing] common interests."
      • (b) "Right of free speech" refers to communications related to "a matter of public concern."
      • (c) "Right to petition" refers to a wide range of activities relating to governmental proceedings or issues being considered by governmental bodies.

      Although dependent on your subject matter, the right of free speech is the section of the statute that will most likely apply to statements made online. The statute defines a "matter of public concern" as as issue related to health or safety; environmental, economic, or community well-being; the government; a public figure or official; or a good, product or service in the marketplace. If a lawsuit against you involves online statements on any of these topics, the statute may provide you relief.

      The Act specifically excludes any "enforcement actions," such as criminal prosecutions, brought in the name of the state of Texas, as well as any legal actions against people "primarily engaged in the business of selling or leasing goods or services," if the statement at the heart of the lawsuit arises out of that sale and is directed at actual or potential customers. The Act further excludes lawsuits related to bodily injury and wrongful death claims.

      How To Use The Texas Anti-SLAPP Statute

      You must file a special motion to dismiss under the Citizens Participation Act within 60 days of being served with the lawsuit. A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Upon learning of a lawsuit against you that you think may be a SLAPP, you should consult an attorney; while legal help is expensive, if your motion to dismiss succeeds the court will grant you attorneys' fees.

      One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to dismiss, the court must rule on your motion within thirty days, unless the court's docket is overbooked. Once your motion to dismiss is filed, discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion – that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions.

      The court may allow some limited discovery as long as it is relevant to the motion to dismiss, but the allowance of such discovery does not extend the time for the court to rule on the motion. In the first appellate decision from Texas interpreting the Citizens Participation Act, the Court of Appeals for the Fifth District held that when a trial court judge deferred ruling on anti-SLAPP motion for more than thirty days after it was filed in order to allow limited discovery to take place, the lower court constructively denied the motion and the defendant had an immediate right to appeal at the end of the thirty-day period. Avila v. Larrea, No. 05-11-01637-CV, slip op. at 11-12 (Tex. App. Dec. 18, 2012).

      Texas courts follow a two-step process when deciding a motion to dismiss under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show “by a preponderance of the evidence” that the plaintiff's claim is "based on, relates to, or is in response to" your exercise of the speech/petition/association rights described above. Once you successfully show that your online writing involves the exercise of those rights, the burden shifts to the plaintiff for step two. The plaintiff must establish "by clear and specific evidence" a prima facie case for each part of his or her original claim; if the plaintiff fails to show this, the court will dismiss the claim.

      Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.

      What Happens If You Win (or Lose) A Motion To Dismiss

      If you prevail, in whole or in part, in your motion to dismiss under the Citizens Participation Act, the court "shall" award you "court costs, reasonable attorney's fees, and other expenses. . . as justice and equity may require." The court "shall" further award you damages from the plaintiff "sufficient to deter the party who brought the legal action from bringing similar actions." In short, the court will tailor your total monetary award to suit both your costs and the specific attributes of the individual plaintiff.

      Note that if the court finds that your motion to dismiss under the Act is "frivolous or solely intended to delay," the judge "may" award court costs and attorney's fees to the plaintiff; this is permissive, not required, and the plaintiff may not recover further punitive damages.

      If you succeed in fending off a SLAPP lawsuit in Texas, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Texas does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Virginia

      Note: This page covers information specific to Virginia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Virginia. If you know about an anti-SLAPP law in Virginia, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

      If you succeed in fending off a SLAPP-type lawsuit in Virginia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Virginia does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in Washington

      Note: This page covers information specific to Washington. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      You can use the Washington Act Limiting Strategic Lawsuits Against Public Participation, found at Wash. Rev. Code § 4.24.525, to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike any claim against you that is based on your public statements about an issue of public concern. The anti-SLAPP law allows for a stay of all discovery, pending hearings, and motions, with certain exceptions. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees, litigation costs, and ten thousand dollars in damages.

      Activities Covered By The Washington Anti-SLAPP Statute

      To challenge a lawsuit under Washington's anti-SLAPP act, you must show that the claim(s) against you is based on your written or spoken acts "involving public participation and petition". Washington defines statements involving "public participation and petition" in 5 ways:

      • (1) Statements made in a "legislative, executive, or judicial proceeding or other governmental proceeding authorized by law,"
      • (2) Statements made regarding any issues under consideration by any branch of the government,
      • (3) Statements that are reasonably likely to encourage public participation and interest in an issue being considered by the government,
      • (4) Statements made "in a place open to the public or a public forum in connection with an issue of public concern," or
      • (5) "Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition."

      Wash. Rev. Code § 4.24.525 (4)(a-e). As an online publisher, you are most likely to rely on the fourth category above. It applies to written statements in a public forum on an issue of public concern.

      Washington courts have not yet explicitly ruled on whether the Internet is a public forum; however, Washington's anti-SLAPP law is explicitly modeled on California's statute, and federal courts in Washington have looked to California law in interpreting Washington's statute. In California, a publicly accessible website is considered a public forum. While California law is not binding on Washington courts, it might be persuasive.

      Many different kinds of statements may relate to an issue of public concern. The statute itself does not define "public concern," but courts in Washington have found that the national health care crisis, or internal happenings in a fire department qualify. Here too, California law can be persuasive to Washington courts; see CMLP's page on California's anti-SLAPP statute for more examples of protected, and unprotected, speech.

      Washington's law explicitly does not apply to prosecutions brought by the state. Wash. Rev. Code § 4.24.525 (3).

      How To Use The Washington Anti-SLAPP Statute

      The Washington anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. (Note that if the plaintiff serves you with an amended complaint, the 60-day deadline will run from service of the amendment.) A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

      One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to strike, the court must hold a hearing on your motion within thirty days, unless the court's docket is overbooked. Until your motion is decided, all discovery and other hearings will be stayed (unless the plaintiff can show good cause for continuing some discovery).

      Washington courts follow a two-step process when deciding a motion to strike under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show by a preponderance of the evidence that the plaintiff's claim is based on your speech protected as involving public participation. (See above.) Once you successfully show that your online writing involves public participation, the burden shifts to the plaintiff for step two. The plaintiff must clearly show “by clear and convincing evidence a probability” of winning the lawsuit; if the plaintiff fails to show this, the court will dismiss the claim.

      Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.

      What Happens If You Win (or Lose) A Motion To Strike

      If you win your motion to strike under Washington's anti-SLAPP statute, the court will dismiss the lawsuit (or the parts of the lawsuit found to be SLAPPs). You will also be entitled to receive your attorneys' fees, your court costs, and an automatic statutory damage award of $10,000. The court may also sanction the plaintiff or the plaintiff's attorney.

      Normally, nothing happens if you lose your motion to strike (other than the lawsuit continuing against you). However, if the court finds that your motion under the anti-SLAPP law was entirely frivolous or solely intended to delay the lawsuit, the court can award attorneys' fees, court costs, and an automatic statutory damage award of $10,000 to the plaintiff.

      If you succeed in fending off a SLAPP lawsuit in Washington, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Washington does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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      Anti-SLAPP Law in the District of Columbia

      Note: This page covers information specific to The District of Columbia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

      The District of Columbia Anti-SLAPP Act of 2010, D.C. Code 16-5502, allows you to counter a SLAPP suit against you based on your statements involving matters of public concern by filing a special motion to dismiss. The Act also allows for the stay of discovery proceedings when the special motion to dismiss is pending, with certain exceptions. Finally, if a party to a SLAPP suit seeks your personal identifying information, the Act allows you to make a special motion to quash the discovery order, request, or subpoena.

      The D.C. Anti-SLAPP Act of 2010 applies to suits based on written or oral statements regarding (1) an issue being considered by a governmental body; (2) governmental or official proceedings; or (3) issues of public interest made in a public forum. It also applies to suits concerning any expressive conduct involving petitioning the government or communicating with the public regarding issues of public interest. Certain commercial statements are specifically outside the protections of the Act.

      The D.C. Anti-SLAPP statute has been invoked in several cases in the District of Columbia. If you know about any additional relevant cases, please contact us.

      Activities protected by the D.C. Anti SLAPP Statute

      To challenge a lawsuit under the D.C. Anti-SLAPP Act, you must show that it is based on your act or acts "in furtherance of the right of advocacy on issues of public interest." It defines "an act in furtherance of the right of advocacy on issues of public interest" as

      (A) Any written or oral statement made:

      (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
      (ii) In a place open to the public or a public forum in connection with an issue of public interest; or
      (B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

      The Act defines an "issue of public interest" as "an issue related to health or safety; environmental, economic, or community well being; the District government; a public figure; or a good, product or service in the market place." The Act specifically excludes "private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance" from the definition of an "issue of public interest."

      Similarly, the D.C. Anti-SLAPP statute specifically does not apply to suits which are:

      brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is:

      (1) A representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person's goods or services; and
      (2) The intended audience is an actual or potential buyer or customer.

      Until judicial guidance is available, the scope of commercial statements excluded from the protection of the protection of the Act will remain subject to interpretation.

      Protections for Personal Identifying Information Sought in a SLAPP suit

      In addition to allowing a defendant in a SLAPP lawsuit to seek dismissal of the suit, the D.C. Anti SLAPP statute also provides some protections if your personal identifying information is sought, "pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest." On its face, this provision is not limited to parties to the lawsuit, and thus might potentially be used by witnesses or other targets of discovery that are not parties.

      As used in this provision, "an act in furtherance of the right of advocacy on issues of public interest," has the same definition as discussed above.

      "Personal identifying information" includes information such as your name, address, and social security number. More specifically, the Act defines "personal identifying information" by reference to section 127a(3) of the District of Columbia Theft and White Collar Crimes Act of 1982 (D.C. Law 4-164, D.C. Code § 22-3227.01(3)). By this reference, "personal identifying information" also includes information such as financial account numbers, government identification numbers (like those on driver's licenses and passports), signatures, biometric data, and employment history.

      How to use the District of Columbia Anti-SLAPP statute

      The D.C. Anti-SLAPP Act of 2010 gives you the ability to file a special motion to dismiss within 45 days after service of the claim. (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a special motion to dismiss under the Anti-SLAPP Act.) The Superior Court of the District of Columbia has denied at least one special motion to discuss under the D.C. Anti-SLAPP Act for failing to file the motion in a timely manner, although the court noted that, in other cases, "the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty five day framework." Newmyer v. Sidwell Friends School, No. 2011 CA 003727 M (D.C. Super. May 22, 2012); see also Sherrod v. Breitbart, 843 F. Supp. 2d 83, 86 (D.D.C. 2012) (denying defendant's motion to dismiss under the D.C. Anti-SLAPP Act in part because the motion to dismiss was filed more than forty five days after service of the claim).

      The special motion to dismiss must make a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion will be granted unless the plaintiff (the party responding to your motion) shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to dismiss will be denied.

      The court must hold an "expedited hearing" on the special motion to dismiss and issue a ruling "as soon as practicable" after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice, meaning that the plaintiff cannot refile her claim against you.

      After you file your special motion to dismiss, the Act provides that discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions. However, if it "appears likely" that targeted discovery will enable the plaintiff to defeat the special motion to dismiss and that the discovery will not be unduly burdensome, the court may order "specialized discovery." The court's order may be conditioned upon the plaintiff paying any expenses you incur in responding to such discovery.

      In addition to creating the special motion to dismiss, the Act also allows a person whose personal identifying information is sought in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest to file a special motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.

      To succeed in your motion to quash, you must make a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion to quash will be granted unless the plaintiff shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to quash will be denied.

      If your special motion to dismiss is denied, you may want to appeal. The District of Columbia Court of Appeals has held that immediate appeal is not available for denials of a special motion to dismiss under the D.C. Anti SLAPP statute. Newmyer v. Sidwell Friends School, No. 2011 CA 3727 (D.C. Dec. 5, 2012). That means that you cannot appeal the denial immediately when the denial order is entered, but rather must wait until the end of the entire trial to appeal the denial of your special motion to dismiss. The issue of whether immediate review is available to appeal denials of special motions to dismiss under the Act is at issue in a case pending before the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart, No. 11-7088.

      Retroactivity

      At least one federal court has held that the D.C. Anti-SLAPP Act does not apply retroactively to lawsuits filed before the effective date of the Act, March 31, 2011, although the case is currently on appeal to the United States Court of Appeals for the District of Columbia Circuit. See Sherrod v. Breitbart, 843 F. Supp. 2d 83, 84 85 (D.D.C. 2012). However, the Superior Court of the District of Columbia has held in at least one case that the Act applies retroactively. Lehan v. Fox Television Stations, Inc., No. 2011 CA 004592 B, 2011 D.C. Super. LEXIS 14 (D.C. Super. Nov. 30, 2011).

      What Happens If You Win A Motion To Dismiss Or Quash

      If you prevail, in whole or in part, on your special motion to dismiss or special motion to quash, the Act provides that the court "may" award you "the costs of litigation, including reasonable attorney fees." Note that the statutory language is permissive; while the court may award you these costs, it is not required to do so. The Act also restricts the court's ability to award the plaintiff attorneys' fees and costs if you do not prevail. In that case, the Act allows the court to award the plaintiff costs only if it finds that your motion is "frivolous" or "solely intended to cause unnecessary delay." The Superior Court of the District of Columbia has awarded attorneys' fees to the plaintiff in at least one case in which it found the special motion was frivolous, i.e. "‘wholly lacking in substance' and not ‘based upon even a faint hope of success on the legal merits.'" Newmyer, No. 2011 CA 003727 M (quoting In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005)).

      If you succeed in fending off a SLAPP lawsuit in the District of Columbia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While the District of Columbia does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

       

      The D.C. Anti-SLAPP Act in the Federal Courts

      The United States District Court for the District of Columbia has issued conflicting opinions on whether the D.C. Anti-SLAPP Act applies in federal court in lawsuits brought under the court's diversity jurisdiction. Cf. Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does apply to federal diversity cases); 3M Co. v. Boulter, 842 F. Supp. 2d 85, 111 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does not apply to federal diversity cases); 3M Co. v. Boulter, No. 11-cv-1527 (RLW), 2012 U.S. Dist. LEXIS 151231 (D.D.C. Oct. 22, 2012) (same). Several cases that may resolve this issue are currently pending on appeal before the United States Court of Appeals for the District of Columbia Circuit.

      The Citizen Media Law Project would like to thank Caitlin Vogus for her contributions to this article, and for her extensive work on the Legal Guide over the past several years.

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      Practical Tips for Avoiding Liability Associated with Harms to Reputation

      While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize your risk of being on the receiving end of a defamation or false light lawsuit. Some suggestions include:

      General Advice

      • Follow good journalistic practices: While you can't reduce your legal risks entirely, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be found liable for defamation. See the section on Journalism Skills and Principles for helpful suggestions.

      • Strive to be as accurate as possible: Truth is a complete defense in defamation and false light cases. If you can prove that what you wrote, posted, or said is true, then you have negated the falsity requirement at the heart of these claims. That means that when it comes to your publishing activities, accuracy isn’t only a good journalistic practice, it also puts you on safer legal ground.

      • Use reliable sources: The better your sources, the better your chances in court. There actually is a privilege for "fair reports" of accurately quoted official records and proceedings. It’s important to report the information accurately, and to properly attribute the information. Be especially careful when using confidential sources. If you rely solely on confidential sources, you may be in a compromised position should you be sued for defamation. It will be very difficult for you to defend yourself by proving your statement is true. Even worse, if you uphold your commitment and refuse to identify your source – and there are important legal and ethical reasons to do so – the result at trial could be a presumption that the source did not exist. See the section on Promising Confidentiality to Your Sources in this guide for more information.

      • Seek comment from the subjects of your statements, when appropriate: If your story or blog post includes an assertion of fact that might be harmful to someone’s reputation, double check your facts and give your subject an opportunity to respond. You don’t necessarily need to include the response in your post, but it can help if you can show you reached out before publication, gave the subject a chance to respond, and considered what he or she had to say. You might find out that the subject has a perfectly reasonable explanation, you received misinformation from other sources, or the subject has confirmed the accuracy of your research.

      • Document your research: It will often be beneficial to you to keep a log of your fact-checking efforts. Save your research and other documentary materials. Don't assume that just because something is available online today, it will always be available. In the case of a lawsuit, you will likely need to produce your notes, drafts, and copies of source materials. Accordingly, if you create these materials you should make sure they provide a complete and accurate picture of the work you did in researching and fact-checking your statements.

      • Keep an eye out for "Red Flag" statements: Some statements are more likely to be problematic than others. Statements that accuse someone of committing a crime or being arrested; acting immorally; acting with professional incompetence; committing malpractice; exhibiting evidence of substance abuse; or engaging in improper sexual activities are especially problematic.

      • Be cautious when publishing negative information about businesses: Many defamation lawsuits are brought by businesses who often have lawyers at their disposal and economic interests tied to their reputations. You have every right to criticize companies and their products and services provided you do so accurately and fairly. However, you can run into problems not only under defamation law, but also under laws designed to enforce fair trade and fair competition, if you falsely disparage a business entity, or its product or services, particularly when your subject is a competitor.

      • Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to defamation and false light claims. Consent can often be gained expressly, by someone specifically telling you that you can publish the information about them, but can also be implied if a person fails to object to a fact-checking draft or read back you send them prior to publication. Where possible, attempt to get express consent.

      • Be willing to correct or retract your mistakes: If someone asks you to publish a correction or retraction, investigate the request carefully. If you find you got something wrong, correct any inaccuracies and issue a correction or retraction. Be prompt and give your correction the same prominent position that you gave the inaccurate information you previously posted. See the section on Correcting or Retracting Your Work After Publication for guidance.

      • Ensure that your work is covered by all applicable privileges: A number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. These defenses, which are often called privileges, may allow you to get out of a case at a very early stage. For example, if the statement at issue is substantially true, a defamation claim cannot succeed. But truth is not the only defense that may be available. You are entitled to state your opinions and if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. We've included some additional tips below that can help you get the most out of any applicable privileges.

      Ensuring that the Opinion and Fair Comment Privileges Apply to Your Statements

      • When offering your opinion about someone or something, make sure the context and the language you use conveys that you are stating your opinion. Words such as "in my opinion," "I believe," and "we think," are not always enough.
      • Avoid using terms that imply underlying, verifiable facts.
      • If you are stating an opinion that is based, at least in part, on verifiable facts be sure to state the facts you are relying on and be careful to ensure that your opinion is reasonable in light of those facts. If possible link to a document or source containing those facts in order to make clear what the underlying facts are that you are basing your opinion on.

      Ensuring that the Fair Report Privilege Applies to Your Statements

      • If you are publishing information about the activities or statements of government officials or institutions, you should seek to rely as much as possible on official documentary sources and statements made by government officials.
      • Provide clear and accurate attribution to all documentary sources and statements by government officials, and keep copies if possible.
      • Stick to the facts. While you may report the content of an official document or the proceedings of a government meeting, your editorial additions (for example, musings as to the motives of those involved) that tend to give a defamatory spin to the report are not privileged.
      • Be fair and evenhanded in your use of these sources. Be sure to read the whole source document and characterize its statements accurately in your reporting. Beware of selective quoting; for example, if you report only negative testimony against the defendant in a lawsuit, while neglecting to report testimony that tends to vindicate the defendant, your coverage could fail the "fairness" requirement of this defense.

      Ensuring that the Neutral Report Privilege Applies to Your Statements

      • Attribute your quotes. Make sure it is obvious that you are reporting on an accusation made by someone else.
      • If your source is a public figure, clearly indicate his title or role when quoting him, so as to emphasize that you are relying on a public figure speaking about a person or subject about which he has some stature or qualification.
      • Be particularly careful when abridging or paraphrasing quotes so as to not change them in such as way as to create a defamatory meaning that was not there previously. Also, if possible, verify your quote with the source.
      • Be fair in your coverage of the accusation or controversy. The neutral report privilege is not available if you provide a biased view of the situation.
      • Keep in mind that the privilege is intended to protect the publication of matters related legitimately to the public good. If you're reporting something that is of vital public interest, it will more likely be privileged than if you are reporting something that is of only marginal import, such as personal gossip concerning a celebrity.

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      Publishing Personal and Private Information

      When you publish information about someone without permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. Most states have laws limiting your ability to publish private facts about someone and recognizing an individual's right to stop you from using his or her name, likeness, and other personal attributes for certain exploitative purposes, such as for advertising goods or services. These laws originally sprang from a policy objective of protecting personal privacy; the aim was to safeguard individuals from embarrassing disclosures about their private lives and from uses of their identities that are hurtful or disruptive of their lives. Over time, the law developed and also recognized the importance of protecting the commercial value of a person's identity -- namely, the ability to profit from authorizing others to use one's name, photograph, or other personal attributes in a commercial setting.

      Specifically, there are two types of legal claims that relate to unauthorized publication of personal and private information:

      • Publication of Private Facts: The legal claim known as "publication of private facts" is a species of invasion of privacy. You commit this kind of invasion of privacy by publishing private facts about an individual, the publication of which would be offensive to a reasonable person. This legal claim can only be successful, however, if the facts in question are not legitimately newsworthy. So, for instance, if you disclose the fact that your neighbor has an embarrassing health condition, you might be liable for publication of private facts. If, however, this medical condition is particularly relevant to some topic of public interest -- say, your neighbor's fitness to serve in public office, a court might find that your publication is lawful. Determining what facts are of legitimate public concern is often difficult to determine, so you may want to get permission before disclosing potentially embarrassing information about an individual you interview or write about. If your work sometimes involves this kind of publication, then you should see the Publication of Private Facts section for further details.

      • Using the Name or Likeness of Another: The legal claim known as "misappropriation of name or likeness" is a species of invasion of privacy. Over time the courts also recognized a legal claim for violation of the "right of publicity," which is closely related. You commit misappropriation and/or violate the right of publicity when you use an individual's name, likeness, or other personal attributes without permission for an exploitative purpose. These legal claims usually apply to the use of a name or image in a commercial setting, such as in advertising or other promotional activities, but they may apply anytime you take advantage of another person's identity for your own benefit. However, individuals cannot stop every mention, discussion, or reporting on their lives or activities, and many states explicitly exempt news reporting and other expressive activities from liability. For example, if you advertise your website using the photograph of a famous rival blogger (or even an unknown rival blogger) without permission, then you might be liable for misappropriation of that person’s likeness. (Another way of saying this is that you might be liable for violating the blogger's "right of publicity.") But, if you write an article commenting on the posts of that same blogger and include his picture, you generally won't be liable for using the blogger's name without permission or including the photograph for illustrative purposes. If you are interested in using the names or photographs of others, especially celebrities, you should consult Using the Name or Likeness of Another for further details.

      While these laws can create pitfalls for citizen media creators, the risks are manageable and you can take certain steps to protect yourself. Most importantly, if you stick to reporting or commenting on matters of legitimate public interest and only portray people who have a reasonable relationship to your topic, then you generally can avoid liability. You should never use someone's name or photograph solely to drive traffic to your website, but you are free to cover the public and noteworthy activities of others, including celebrities. Finally, if you are worried about legal liability, you can get consent from the individual or individuals who might be offended by your particular disclosure or use. For additional information on what practical steps you can take to avoid liability, see the section on Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity Claims.

      Finally, you should also be aware that the federal government, as well as many states, have statutes related to collecting personal data from those who visit your website. For instance, the California Online Privacy Protection Act of 2003 requires the operator of a commercial website that collects personal information about users to conspicuously post its privacy policy on its Web site. The federal government also puts some restrictions on data that websites can lawfully gather. Congress enacted the Children's Online Privacy Protection Act to set limits on the online collection of personal information from children under 13. The Act details what a website operator must include in its privacy policy, when and how to seek verifiable consent from a parent, and what responsibilities an operator has to protect children's privacy and safety online.  For information on using a website privacy policy to minimize the legal risks associated with gathering private information, see the Privacy Policy section of our legal guide.

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      Publication of Private Facts

      In most states, you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. For example, writing about a person's HIV status, sexual orientation, or financial troubles could lead to liability for publication of private facts. However, the law protects you when you publish information that is newsworthy, regardless of whether someone else would like you to keep that information private. In addition, the law protects you if you publish information already exposed to the public eye and especially material obtained from publicly available court records. Despite the law's substantial protections for legitimate reporting on matters of public interest, it is a good practice to obtain consent before publishing sensitive private information about someone.

      Who Can Sue for Publication of Private Facts

      Only human beings, and not corporations or other organizations, can sue for publication of private facts. Publication of private facts is a type of invasion of privacy, and you cannot invade the privacy of a dead person. Therefore, an estate cannot sue you for publishing private facts about a dead person, unless your publication took place before the person in question died. Note, however, that members of a dead person's family may be able to sue in their own right if you disclose private facts that relate to them too.

      Elements of a Private Facts Claim

      A plaintiff must establish four elements to hold someone liable for publication of private facts:

      1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question.
      2. Private Fact: The fact or facts disclosed must be private, and not generally known.
      3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
      4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.

      Below, we address these elements in greater detail. Keep in mind that publication of private facts is a state-law legal claim, so there is some variation of the law in different states. For state-specific information, see State Law: Publication of Private Facts.

      Public Disclosure

      A plaintiff bringing a publication of private facts claim must show that the defendant made a public disclosure of the fact or facts in question. This means communication to the public at large, or to so many people that the matter must be regarded as likely to become public knowledge. As a general matter, publication of information on a website or blog (or any other publicly available platform on the Internet) will satisfy this element. On the other hand, it might not be a public disclosure if you simply convey private information about someone in an email to one or two other people, so long as it is understood that the information is not meant for further dissemination to the public.

      Private Fact

      A plaintiff bringing a publication of private facts claim must show that the defendant disclosed a private fact. This means pretty much what it sounds like. A private fact is an intimate detail of one's private life that is not generally known. Common examples of private facts include information about medical conditions, sexual orientation and history, and financial status. It may also include things like someone's social security or phone number, if that information is not ordinarily publicly available. A plaintiff has no privacy interest with respect to a matter that is already public. Thus, you cannot be held liable for discussing or republishing information about someone that is already publicly available (e.g., found on the Internet or in the newspaper). For instance, a few years ago, Robert Steinbuch, a former Congressional aide sued Jessica Cutler, another former Congressional aide, for publishing information about their private sexual relations on her blog, Washingtonienne. Steinbuch also sued Anna Marie Cox of Wonkette for calling attention to Cutler's blog and making the story spread around the Internet like wildfire. Steinbuch's claim against Cutler may have some merit because she disclosed on her blog embarrassing information about him that was not publicly available, but the case has yet to be decided. See our database entry, Steinbuch v. Cutler for details. On the other hand, the court dismissed Steinbuch's publication of private facts claim against Cox because she did nothing but blog about a matter that was already public. (Cox's lawyers do an excellent job of arguing the point in this brief.)

      In addition, you cannot be held liable for giving publicity to a matter that the plaintiff leaves open to the public eye. For example, when the man who helped stop an assassination attempt on President Ford sued two newspapers for revealing that he was a homosexual, the court denied him relief, finding that his sexual orientation and participation in gay community activities was already widely known by hundreds of people in a variety of cities. The record showed that, prior to the publication in question, the plaintiff had frequented gay bars, participated in gay pride parades, and that his friendship with Harvey Milk (a prominent gay figure) was well-known and publicized in gay newspapers. This, in the court's view, was sufficient to establish that the plaintiff had left his sexual orientation open to the public eye. See Sipple v. Chronicle Publ'g Co., 154 Cal. App. 3d 1040 (Cal. Ct. App. 1984). In another case, a stripper sued ABC for publishing private facts about her when the television show 20/20 aired a program about the allegedly illegal activities of several persons associated with the strip bar where she worked. The plaintiff appeared in a few shots of the TV program dancing nude in the background. The court held that the plaintiff did not have a valid claim for publication of private facts because her stripping activity was open to the public eye; anyone who paid the $5.00 cover charge could see her performing her work. See Puckett v. American Broad. Co., 1990 WL 170425 (6th Cir. Nov. 6, 1990). In a more recent case, several Navy SEALs sued the Associated Press for publishing photographs of them potentially abusing Iraqi captives. The court held that the images were not private because the plaintiffs were members of the military on active duty conducting wartime operations in full uniform and chose to allow their activities to be photographed and placed on the Internet. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal. 2005).

      As the latter two cases suggest, a person's photograph or image can be a "private fact," but generally not when it is captured in a public or semi-public place. Therefore, you can generally publish photographs of an individual or individuals taken in public places without liability for publication of private facts. For example, in Gilbert v. Hearst Pub. Co., 253 P.2d 441(Cal. 1953), the court held that a newspaper was not liable for invasion of privacy through publication of private facts when it published a photograph of a couple kissing at the farmer's market in San Francisco. Note, however, that publishing photographs of other people, even if taken in public, may result in liability for unauthorized use of name or likeness. See Using the Name or Likeness of Another for details. And, if you intrude into a private place in order to photograph or record someone, you could be held liable for intrusion. See Gathering Private Information for details.

      Offensiveness

      A plaintiff bringing a publication of private facts claim must show that, under the circumstances, publishing the facts in question would have been highly offensive to a reasonable person of ordinary sensibilities. The question is not whether the plaintiff himself/herself found the public disclosure highly offensive, but whether an ordinary person reflecting community mores would find it so. Thus, the law does not give special solicitude to a plaintiff with a "thin skin." As the Restatement of Torts explains:

      Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part. Thus he must expect the more or less casual observation of his neighbors as to what he does, and that his comings and goings and his ordinary daily activities, will be described in the press as a matter of casual interest to others. The ordinary reasonable man does not take offense at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for his friends. Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.

      Restatement (Second) of Torts § 263D cmt. c. Some examples of activities found to be highly offensive include publishing a photograph of a woman nursing a child or posing nude in a bathtub, displaying a movie of a woman's caesarian operation, and disseminating a video showing two celebrities having sex. Some activities found not to be highly offensive include publishing an accurate account of a private wedding, publishing a photograph of a couple kissing in public, and publishing photographs of military personnel showing potential prisoner abuse.

      Newsworthiness -- Matters of Legitimate Public Concern

      Newsworthiness is ordinarily the most important issue in a publication of private facts case. In many states, a plaintiff bringing a publication of private facts claim must show affirmatively that the facts disclosed were not newsworthy -- i.e., they were not a matter of legitimate public concern. In other states, the defendant must raise newsworthiness as a defense. Many courts hold that publishers have a constitutional privilege to publish truthful information on a matter of legitimate public concern. In any event, you ordinarily cannot he held liable for disclosing private facts about someone so long as those facts are of legitimate public concern.

      Defining what is a matter of legitimate public interest can be tricky. But, courts generally are reluctant to second-guess the media, and they therefore take a very broad view of newsworthiness. Courts have held that there is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as movie stars, politicians, and professional athletes. Thus, newsworthy publications include those "concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal." Restatement (Second) of Torts § 263D cmt. Moreover, the protection for newsworthy publications extends beyond the dissemination of "news" in the sense of current events or commentary upon public affairs. It extends also to "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period." Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Thus, courts have found to be newsworthy articles dealing with unique love relationships, an Indian rope trick, the whereabouts and living conditions of a former child prodigy, and the peculiar personal characteristics of Bush campaign volunteers.

      Despite the broad scope of potentially newsworthy topics, you risk losing your protection from liability if you exceed the bounds of common decency: "The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). The courts agree that most facts about public officials and celebrities are of legitimate public concern, but they also recognize that even famous public figures retain a zone of privacy relating to things like sexual activity and medical information. Ordinary people may become "involuntary public figures" when they take part in an event or occurrence of public significance, such as a crime, an accident, or a spontaneous act of heroism. When this happens, many facts about their lives become legitimately newsworthy, like their home addresses and information about their education, upbringing, and family. The media is allowed to use colorful facts about newsworthy individuals to create a thorough and compelling portrayal, so long as there is some logical connection between the facts disclosed and the matter of legitimate public interest. Accordingly, a court has held that information about a physician's psychiatric history and marital life was substantially relevant to the newsworthy topic of policing failures in the medical profession, when the physician in question had committed two acts of alleged malpractice. See Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981). Similarly, a court held that a newspaper could legitimately publish the name and address of the father of a person who was being questioned as a suspect in the rape of a young girl. See Strutner v. Dispatch Printing Co., 442 N.E.2d 129 (Ohio Ct. App. 1982). In yet another example, a court held that a woman could not successfully sue over a photograph of her walking on the grounds of a private psychiatric hospital when she was walking next to a famous fellow patient whose "mental and physical rehabilitation was clearly newsworthy." Howell v. New York Post Co., 181 A.D.2d 597 (N.Y. App. Div. 1992).

      On the other hand, sometimes the connection between disclosed private facts and a topic of admitted public interest is too attenuated. In one case, a court held that the disclosed fact that a student political leader was a transsexual was not of legitimate public concern, even though the disclosure happened in connection with a series of newsworthy articles about the student leader (she was the first female student body president at the college in question). See Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (Cal. Ct. App. 1983). The court reasoned that there was no connection between the plaintiff's gender status and her fitness for office or any other relevant issue, and that her position did not warrant opening up her entire private life to public inspection. Moreover, the court perceived that the reporter in question was making a joke at the plaintiff's expense, which did not help his case. In another case, a court held that a surfer could take his publication of private facts claim to trial where he established that a magazine published information about embarrassing incidents from his personal history. While the overall topic of the offending article (body surfing at a famous California beach) was newsworthy, the court ruled that a jury would be entitled to conclude that information about the plaintiff's non-surfing life was not newsworthy. See Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975).

      The passage of time might also affect whether a private fact is newsworthy. Facts that might be considered newsworthy at the time of the event will not necessarily remain so months or years later. This sometimes comes up with information about past crimes. Some courts have held that information about an individual's commission of a crime in the remote past is not a matter of legitimate public concern when that individual has completely rehabilitated himself/herself. However, other courts have rejected this view, so long as there is some connection to a topic of continuing interest. Nevertheless, you may want to think twice about publishing private information about someone who used to be an important public figure, but who now has faded into obscurity.

      Relying on Public Records

      In Cox Broadcasting v. Cohen, 420 U.S. 469 (1975), the Supreme Court of the United States held that the First Amendment to the Constitution prohibits states from imposing a penalty on the press for publishing accurate information obtained from a public court record. As a result of this case, most states recognize an absolute privilege for publication of information found in a publicly available (i.e., not sealed) court record. While the case involved traditional media, there is no reason to believe that its reasoning and holding would not extend to non-traditional journalists and other online publishers. This means that you cannot be held liable for publishing accurate facts about someone that you find in a public court record, regardless of how embarrassing they are. Note that this privilege will protect you in publishing information about past crimes (discussed above), so long as you gather your information from publicly available court records, such as an indictment or trial transcript. For information on accessing court records, see Access to Courts and Court Records.

      Many states have extended this protection from liability to the publication of information found in "public records" in addition to court records. The exact meaning of "public records" varies, but in some states it includes information obtained from government agencies through state freedom of information requests. See State Law: Publication of Private Facts for details on the scope of the First Amendment privilege and Access to Government Records for information on freedom of information requests.

      Consent

      Consent is a complete defense to a legal claim for publication of private facts. When you interview someone to gather information for later publication, it is a good practice to ask for consent to use the material on your website, blog, or other online platform. Make sure to get consent in writing whenever possible. You can use an interview release form. This release can help protect you against misappropriation and right of publicity claims in addition to publication of private facts claims. Some examples of interview releases can be found in Stanford's Copyright and Fair Use Guide, and at EmilioCorsetti.com and the University of Michigan Press. You can find additional samples by doing a basic Internet search for "interview release," and the book The Copyright Permission and Libel Handbook by Lloyd J. Jassin and Steven C. Schecter has two excellent examples. An interview release can take various forms; you will need to choose and customize one to suit your own purposes. Make sure to mention explicitly your intent to use information conveyed during the interview for publication on the Internet.

      If you take photographs of someone for later publication, you should also consider getting a model release. A model release primarily protects you against claims of unlawful use of name or likeness, but it also may be helpful if you photograph an individual in a private setting or if a photograph otherwise reveals private information. You can find examples at Ourmedia, the American Society of Media Photographers (model release for adult, model release for minor child, simplified model release, and pocket release), and the New York Institute of Photography. As above, you will need to customize the release to fit your purposes and circumstances.

      Children cannot consent on their own behalf. When using the name or likeness of a minor (generally someone under the age of eighteen), you should seek consent from the minor's parent. Some of the example release forms linked to above are geared toward getting the consent of minors. State laws may recognize other situations where individuals are not able to consent on their own behalf. For instance, imagine you come across the scene of an accident and find a half-conscious accident victim. You might seek the consent of that individual to take pictures and ride along with him or her in the ambulance on the way to the hospital. Depending on state law, a court might not recognize consent provided by such a half-conscious and obviously traumatized individual.

      Keep in mind that people giving you consent can revoke (i.e., take back) that consent anytime before the use of their name or photograph takes place. Therefore, you should honor the decisions of consenting persons who suddenly change their minds, so long as publication hasn't already taken place.

      Statute of Limitations

      The "statute of limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over took place. This time limit is set by state law and is intended to promote fairness and keep old cases from clogging the courts. In publication of private facts cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. The limitations period varies based on state law; usually it is between one and three years. See the state pages for the applicable term in your state.

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      State Law: Publication of Private Facts

      Each state has its own definition of what constitutes invasion of privacy through the publication of private facts. Choose from the list below to determine whether your state recognizes a legal claim for publication of private facts, and, if so, how it defines the elements of and defenses to a private facts claim. (Note that the guide does not include every state at this time.)

      Subject Area: 

      Publication of Private Facts in Arizona

      It is not clear whether Arizona recognizes a claim for publication of private facts.  Although the Court of Appeals of Arizona discussed possible elements of a publication of private facts claim in Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243 (Ariz. App. 1986), the Court noted that Arizona precedent regarding the existence of such a claim was not settled.  Id. at 1246 n. 3; see also Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 669 (Ariz. App. 1969) (noting that Arizona "possibly" recognizes a claim for publication of private facts).

      Elements of a Private Facts Claim

      The only Arizona Supreme Court case to discuss the elements of a private facts claim indicated that "[a] person who unreasonably and seriously interferes with another's interest in not having his affairs known to others" might be held liable for invasion of privacy.  Reed v. Real Detective Pub. Co., 162 P.2d 133, 137 (Ariz. 1945). However, at least one court has indicated that this description of the claim is outdated.  Rutledge, 715 P.2d at 1246 n.3.  If Arizona were to recognize a claim for publication of private facts, the Arizona Supreme Court would likely follow the generally accepted elements for a such a claim.

      The Arizona Supreme Court has recognized that privacy rights are absent or limited “in connection with the life of a person in whom the public has a rightful interest, [or] where the information would be of public benefit.” Accordingly, the Court has held in a related context that public servants have no right to privacy concerning the performance of their public lives or duties. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 789 (Ariz. 1989) (claim for false light invasion of privacy).

      Relying on Public Records

      The Arizona Supreme Court has not addressed the question of whether liability for publication of private facts may be imposed for dissemination of information in the public record.  However, in the context of a claim for false light invasion of privacy, at least one Arizona court has recognized a privilege against liability for reporting information from the public record as long as the report is a fair and accurate abridgment of the records used. Sallomi v. Phoenix Newspapers, Inc., 771 P.2d 469, 472 (Ariz. App. 1989). 

      Consent

      The Arizona Supreme Court has not specifically addressed the question of whether the consent of the person whose information is published is a defense to a private facts claim.  The Court has, however, recognized in another privacy-related context that that consent is a defense, and also that a plaintiff who has become a “public character” may be found to have waived his privacy rights. Reed v. Real Detective Pub. Co., 162 P.2d 133, 138 (Ariz. 1945).  It is not clear if a "public character" is the same as a "public figure" for the purposes of defamation law (scroll down).

      Statute of Limitations

      The statute of limitations for any privacy claim in Arizona is 2 years. A.R.S. § 12-542.

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      Publication of Private Facts in California

      California recognizes a legal claim for publication of private facts. For the most part, the law in California is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of California law that are different from the general description.

      Elements of a Private Facts Claim

      In California, the elements of a publications of private facts claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. California is notable for also requiring a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).

      This requirement gives you extra protection against a private facts claim. It means that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway. In a court, this would involve examination of your state of mind at the time of the publication.

      Under California law, the plaintiff must affirmatively prove that the facts published were not a matter of legitimate public concern; otherwise, the claim fails. The courts consider three factors when deciding whether facts are of legitimate public concern: (1) the social value of the facts published; (2) the depth of the intrusion into ostensibly private affairs; and (3) the extent to which the plaintiff voluntarily assumed a position of public notoriety. Most facts about celebrities and public officials are considered matters of legitimate public concern. Private facts about ordinary people involved in events or occurrences of public significance are of legitimate public concern if they bear a reasonable relationship to the newsworthy topic. Courts applying California law have found the following information, among other things, to be newsworthy (i.e., of legitimate public concern):

      • publication of an actress's address;
      • photos showing potential abuse of military prisoners;
      • reports of recent crimes (but not necessarily including names of witnesses and victims);
      • facts surrounding the disappearance of a man believed to have been murdered by the Manson family, and the fact that the plaintiff was the last person to see him alive;
      • the sexual orientation of a man who helped thwart an assassination attempt on President Ford;
      • the name of a young woman who had kept her pregnancy secret, given birth, and asked her brother (also named) to abandon the baby at a hospital under false pretenses;
      • images of automobile accident victims being rescued and treated; and
      • information and records reflecting misconduct by the children of a candidate for public office.

      In contrast, courts applying California law have found the following things, among others, to be potentially non-newsworthy:

      • the fact that the first female student body president of a college was a transsexual;
      • embarrassing stories from a prominent body surfer's personal history;
      • the name of a woman who had discovered her murdered roommate and seen the murder suspect in her apartment, when the suspect was still at large; and
      • the identity of a participant in the federal witness protection program.

      For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: California.

      Relying on Public Records

      In California, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. For example, in Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004), the California Supreme Court held that a news organization could not be held liable for broadcasting truthful information obtained from official court records about the plaintiff's past criminal history. So far, California courts have only applied this rule to information obtained from court records, but the protection could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      California recognizes consent as a defense to a publication of private facts claim. California courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in California is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations in California for publication of private facts claims is not entirely clear. A number of California court decisions applying California law have held that the one-year statute of limitations for libel actions applies to claims for invasion of privacy, which includes claims for publication of private facts. The statute of limitations for libel actions is found at Cal. Civ. Proc. Code § 340.

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      Publication of Private Facts in Florida

      Florida recognizes a legal claim for publication of private facts. For the most part, the law in Florida is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Florida law that are different from the general description.

      Elements of a Private Facts Claim

      In Florida, the elements of a publications of private facts claim are: (1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.

      Florida law does not impose liability for publication of facts that are of legitimate public concern. The Florida Supreme Court has recognized that this "newsworthiness" exception presents a "formidable obstacle" for a plaintiff bringing an invasion of privacy lawsuit. Hitchner v. Cape Publication, Inc., 549 So. 2d 1374, 1377 (Fla. 1989). This exception to liability is very broad; without question, this covers things like current events of public significance and information about the actors who take part in them. It also covers "soft news" and other human interest portrayals and accounts.

      The courts have recognized, however, that individuals maintain a zone of privacy relating to certain sensitive personal matters. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

      Courts applying Florida law have found the following things, among others, to be newsworthy (i.e., of legitimate public concern):

      • facts relating to child abuse allegations, which came from a confidential file released to the press in violation of a Florida statute, when the reporter was using the facts to call into question a criminal court's decision rather than "attempting to sensationalize a private nongovernment matter";
      • a newspaper story detailing the abduction of a woman by her estranged husband and his holding her hostage, and publication of a photograph of the woman, clad only in a dish towel, after she was rescued by the police;
      • a "canned" news film depicting the plaintiff, who was an innocent bystander during a gambling raid on a cigar store;
      • a factual account of the murder of the plaintiff's husband;
      • a depiction of the plaintiff as a murder witness in Bob Dylan's song about the murder trial of Ruben "Hurricane" Carter;
      • a television news broadcast showing the plaintiff, a lobbyist, in a hotel bar, when the TV program was documenting how state employees spent time during a bomb threat incident that evacuated the capitol building; and
      • a conversation at Bush campaign headquarters, in which the plaintiff, a political campaign worker, shared bizarre ideas like the benefits of having society guarded by a clone army, when the purpose of the article was to help readers understand the nature of support for President Bush.

      In contrast, one Florida court held that a plaintiff stated a cause of action for publication of private facts when she alleged that a TV program had broadcast an interview with her about her unfortunate plastic surgery experience without disguising her voice and concealing her face as promised. The court rejected the argument that the information disclosed in the interview was newsworthy, concluding that "while the topic of the broadcast was of legitimate public concern, the plaintiff's identity was not." Doe v. Univision Television Group, Inc., 717 So.2d 63, 65 (Fla. Dist. Ct. App. 1998).

      For additional information and discussion of Florida cases, see the Reporters Committee's Photographers' Guide to Privacy: Florida and the Florida Bar's Reporter's Handbook.

      Relying on Public Records

      In Florida, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Florida courts have applied this protection to information obtained from court records (and from proceedings in open court), but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Florida recognizes consent as a defense to a publication of private facts claim. Florida courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Florida is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for publication of private facts claims in Florida is four years. See Fla. Stat. § 95.11(3)(p).

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      Publication of Private Facts in Georgia

      Georgia recognizes a legal claim for publication of private facts. For the most part, the law in Georgia is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Georgia law that are different from the general description.

      Elements of a Private Facts Claim

      In Georgia, the elements of a publication of private facts claim are: (1) the disclosure of private facts must be a public disclosure; (2) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (3) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

      Georgia law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Wilson v. Thurman, 445 S.E.2d 811, 813 (Ga. Ct. App. 1994). Georgia courts have repeatedly affirmed that reporting about issues concerning crime and criminal investigations are matters of public interest and cannot support a claim of invasion of privacy.

      For example, courts applying Georgia law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

      • the identity of a man who recalled observing a noteworthy automobile at a double-homicide crime scene and informed police, his neighbors and the press about his observation;

      • a truthful description of a vicious attack of a high school student by a group of his fellow students;

      • a state investigation report concerning allegations of sexual harassment by a state employee that was disclosed to the media pursuant to an Open Records Act request;

      • the name of a woman who shot and killed an intruder who attempted to assault her sexually; and

      • the depiction of an inmate at a corrections facility that was broadcast by the media in connection with a story about improper use of prison labor by county officials.

      In contrast, a Georgia appellate court affirmed the award of damages to a plaintiff whose identity as an AIDS patient was disclosed in a television program about AIDS. The court cited legislative enactments that protected persons against the disclosure of confidential AIDS information and reasoned that in each prior case which had rejected a claim for publication of private facts based upon the public interest of the subject matter, the information disclosed concerned a “criminal incident or investigation.” Multimedia WMAZ v. Kubach, 443 S.E.2d 491, 494-95 (Ga. App. Ct. 1994).

      For additional information and discussion of Georgia cases, see the Reporters Committee's Photographers' Guide to Privacy: Georgia.

      Relying on Public Records

      In Georgia, you generally cannot be held liable for publishing truthful information obtained from government records open to public inspection. Courts have applied this protection to information obtained from court records and statements made before a public body, but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Georgia recognizes consent as a defense to a publication of private facts claim. Georgia courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Georgia is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for publication of private facts claims in Georgia is two years. See Ga. Code Ann. § 9-3-33 (2006).

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      Publication of Private Facts in Illinois

      Illinois recognizes a legal claim for publication of private facts. For the most part, the law in Illinois is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Illinois law that are different from the general description.

      Elements of a Private Facts Claim

      In Illinois, the elements of a publications of private facts claim are: (1) publicity was given to private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person.

      Illinois law does not impose liability for invasion of privacy when the invasion is deemed newsworthy or is a matter of legitimate public concern. Persons performing official duties for the government have no right of privacy as to information concerning discharge of those duties. Cassidy v. Am. Broad. Cos., 377 N.E.2d 126, 132 (1st. Dist. 1978). In addition, courts applying Illinois law have found the following things, among others, to be newsworthy:

      • a newspaper article on the dangers of drugs that disclosed the identity of a teen who overdosed on drugs;
      • a dramatization made by a publisher of a newspaper article describing the murder of a woman; and
      • the broadcast of an undercover police officer in the performance of his official duties.

      In contrast, an Illinois court has held that a jury reasonably could find that a photograph of a woman's dead son (killed by gunshot wound in a gang-related incident) and her statements to his expired corpse in a private hospital room were not of legitimate public concern, even though the general topic of gang violence was newsworthy. It reasoned that the jury could determine that the newspaper did not need the plaintiff's intimate statements to her son or his photograph to convey the human suffering behind gang violence. See Green v. Chicago Tribune, 675 N.E.2d 249 (Ill. App. Ct. 1996).

      Relying on Public Documents

      In Illinois, you generally cannot be held liable for publishing truthful information gleaned from public records which include, for example, criminal records and divorce decrees. The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Illinois recognizes consent as a defense to a publication of private facts claim. Illinois courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Illinois is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations in Illinois for publication of private facts claim is one year. See 735 Ill. Comp. Stat. 5/13-201.

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      Publication of Private Facts in Indiana

      Whether Indiana recognizes a legal claim for publication of private facts is unsettled. Before 1997, Indiana's lower courts recognized a such a claim. But, in Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997), two Justices of the Indiana Supreme Court ruled that Indiana law did not recognize a legal claim for publication of private facts, while three other Justices agreed with the result in the case but not with their reasoning. Later courts have disagreed on whether this claim still exists in Indiana.

      To the extent that Indiana law still recognizes a publication of private facts claim, it is generally similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Indiana law that are different from the general description.

      Elements of a Private Facts Claim

      If Indiana still recognizes a private facts claim, the elements are: (1) a public disclosure of private information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (2) to persons who have no legitimate interest in the information; (3) in a manner that is coercive and oppressive.

      Indiana law does not impose liability for publication of facts that are of legitimate public interest. Nobles v. Cartwright, 659 N.E.2d 1064, 1073 (Ind. Ct. App. 1995). Courts applying Indiana law have found the following things to be of legitimate public interest (i.e., newsworthy):

      • a suspected arsonist's loan status disclosed by a bank to an arson investigator;

      • debts owed by the employees of a company disclosed by a creditor to the employer; and

      • the details of an extramarital affair related to a sexual harassment claim against agents of the State Lottery Commission of Indiana made public by the media.

      Relying on Public Records

      In Indiana, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection, but there is little case law on this subject. This protection applies most commonly to information obtained in court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Indiana recognizes consent as a defense to a publication of private facts claim. Indiana courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Indiana is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      Assuming that Indiana still recognizes a publication of private facts claim, the statute of limitations in Indiana is two years. See Ind. Code § 34-11-2-4.

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      Publication of Private Facts in Massachusetts

      Massachusetts recognizes a legal claim for publication of private facts based on Mass. Gen. Laws ch. 214, § 1B, which proscribes "unreasonable, substantial or serious interference" with one's privacy. For the most part, the law in Massachusetts is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Massachusetts law that are different from the general description.

      Elements of a Private Facts Claim

      In Massachusetts, a publication of private facts claim requires proof of a publication of facts of a "highly personal or intimate nature" which are "of no business of the public." In contrast to several other jurisdictions, the disclosure need not be made to the public at large and a disclosure to two people has been found sufficient to warrant relief under § 1B. Offensiveness to a reasonable person is not one of the statutory criteria under § 1B, but Massachusetts courts consider publication of private information "of no business to the public" to be "offensive." See Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. Ct. 1979). Massachusetts courts have rejected a number of invasion of privacy claims based on conduct taking place in public locations because the facts in question were not private. See the general description for more information on the elements of a private facts claim.

      Massachusetts law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Peckham v. Boston Herald, Inc., 719 N.E.2d 888, 892-94 (Mass App. Ct. 1999). For example, courts applying Massachusetts law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

      • a photograph of a girl taken shorty after she died in a car accident;

      • a biography of an inventor;

      • passages from an autobiographical book depicting sexual relations with the author's former boyfriend, when the passages related to an examination of when undesired physical intimacy crosses the line into non-consensual sexual relations in the context of the author's unique health condition;

      • a report about an applicant for a school superintendent's position who has reached an advanced point in the hiring process;

      • a report about allegations of sexual harassment against the owner of a youth hostel open to the public; and

      • a television network's broadcast of the plaintiff's arrest for murder.

      In contrast, Massachusetts courts have found that confidential medical information is not a matter of legitimate public concern and have upheld an invasion of privacy claim based on a report publishing unsubstantiated ten-year-old investigation material about the plaintiff, a public figure.

      Relying on Public Records

      In Massachusetts, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Massachusetts courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Massachusetts recognizes consent as a defense to a publication of private facts claim. Massachusetts courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Massachusetts is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for publication of private facts claims in Massachusetts is three years. See Mass. Gen. Laws ch. 260, § 2A.

       

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      Publication of Private Facts in Michigan

      Michigan recognizes a legal claim for publication of private facts. For the most part, the law in Michigan is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Michigan law that are different from the general description.

      Elements of a Private Facts Claim

      In Michigan, a cause of action for public disclosure of private facts requires the disclosure of (1) private information that is not already a matter of public record or otherwise open to the public eye; (2) that is of no legitimate concern to the public; and (3) the publication of which would be highly offensive to a reasonable person.

      Michigan law does not impose liability for publishing facts that are of legitimate public concern or newsworthy. Courts applying Michigan law have found the following things to be of legitimate public concern (i.e., newsworthy):

      • a newspaper article about the plaintiff's husband's death by fire along with another woman, including biographical information about the plaintiff and her children and mentioning that her husband had been seen in a bar with the other woman before the fire;
      • a report disclosing the address of a foreign judge who had received death threats from a well-known drug cartel because the death threats placed his neighbors in danger; and
      • information about the disciplinary measures imposed on the plaintiff, a police officer, who allegedly failed to properly perform his duties;

      In contrast, a Michigan appellate court held that, even though the topic of abortion is a matter of public interest, the identities of patients actually undergoing the procedure were not. See Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995). Similarly, another court held that, while the general topic of a newspaper article -- unique love relationships -- was of legitimate public concern, the specific facts disclosed about the plaintiff -- including that she had several abortions, engaged in partner swapping, and was involved in a surrogate parenting relationship with her former husband and her maid of honor -- were not necessarily newsworthy. See Winstead v. Sweeney, 517 N.W.2d 874 (Mich. Ct. App. 1994).

      Relying on Public Records

      In Michigan, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. This includes court records and other government records that place information before the public eye.

      Consent

      Michigan recognizes consent as a defense to a publication of private facts claim. Michigan courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Michigan is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      There is no statute of limitations for an invasion of privacy claim in Michigan, but a publication of private facts claim would likely be governed by the general three-year statute of limitations for negligence claims. Mich. Comp. Laws § 600.5805(8).

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      Publication of Private Facts in Missouri

      Missouri was one of the first states to recognize a legal claim for the publication of private facts. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). For the most part, the law in Missouri is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Missouri law that are different from the general description.

      Elements of a Private Facts Claim 

      In Missouri, a publication of private facts claim requires proof of: (1) publication or "publicity" (2) absent any waiver or privilege, (3) of private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities." Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990).

      Missouri law defines "publicity" as a disclosure made to the general public or likely to reach the general public. Missouri courts have treated the oral disclosure of private facts in a public setting as sufficient "publicity" to give rise to potential liability. See Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959).

      Missouri law recognizes a distinction between newsworthy events and "private matters" in which the public has no legitimate concern. While a topic might be newsworthy, however, this does not mean that every individual's connection or participation in that matter is newsworthy. For example, the Missouri Supreme Court held that while a plaintiff's unusual medical condition may have been a matter of public interest and thereby newsworthy, her identity was a private matter. See Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). Likewise, the success of a hospital's in vitro fertilization program was newsworthy, but the identity of plaintiffs participating in the program was a private matter. See Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990). Missouri courts have consistently ruled that medical conditions and hospital stays are private facts.

      Where the police, public bodies, or legal institutions are involved, the matter will likely be one of public interest. Buller v. Pulitzer Pub. Co., 684 S.W.2d 473 (Mo. Ct. App. 1984). 

      Certain details about an individual's life may fall into the public interest through legal action, police activity, or the action of other public bodies (even if that individual had no intention of making them known to the public). In Williams v. KCMO Broadcasting Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971), a man was filmed being put into a police car after he was arrested with five others. During a broadcast of the footage, commentary stated that three of the men would be charged in connection with a crime. Even though the plaintiff did not participate in a crime and was released without being charged, the court held that he did not have a cause of action for invasion of privacy.

      If another media outlet has already disclosed information about an individual, that information will not be considered private for the purposes of a subsequent publication by another publisher. However, this does not apply to information not contained in the original publication. See Barber v. Time, Inc., 159 S.W.2d 291 (1942).

      Missouri law requires plaintiffs to show that a publication shows a "serious, unreasonable, unwarranted and offensive invasion of private affiars" before damages can be awarded. Barber v. Time, Inc., 159 S.W.2d 291 (1942). Because of this requirement, a Missouri court noted that the state "places a heavier burden on the plaintiff than do many of the other jurisdictions." Williams v. KCMO Broad. Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971). 

      Relying on Public Records

      In Missouri, you generally cannot be held liable for publishing truthful information that is a matter of public record. A federal court applying Missouri law held that a publication of private facts claim could not be based on information revealed in open court proceedings. See McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir. 1976). A Missouri court applied this protection to information revealed in an open meeting of a city council. See Boeke v. Williams, 721 S.W.2d 794 (Mo. Ct. App. 1986). It would likely apply to information obtained from other public government records as well. 

      Waiver

      Missouri appears to recognize waiver (or consent) as a defense to a publication of private facts claim. However, courts have not addressed this issue in depth. 

      Statute of Limitations

      Missouri does not provide a statute of limitations period specific to the filing of an invasion of privacy actions, but has a general statute of limitations of five years. Mo. Rev. Stat. § 516.120. This five-year statute of limitations likely applies to causes of action for the publication of private facts. In defamation cases, Missouri applies a statute of limitations of two years. Mo. Rev. § 516.140. Missouri courts have applied this two-year statute of limitations when plaintiffs have attempted to sue for false light or invasion of privacy, but the court determines that the plaintiff's claim is actually one for defamation. See Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475 (Mo. 1986).

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      Publication of Private Facts in New Jersey

      New Jersey recognizes a legal claim for publication of private facts. For the most part, the law in New Jersey is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of New Jersey law that are different from the general description.

      Elements of a Private Facts Claim

      In New Jersey, the elements of a publication of private facts claim are: (1) the matter or matters revealed were actually private; (2) dissemination of such facts would be offensive to a reasonable person; and (3) there is no legitimate public interest in being apprised of the facts publicized.

      New Jersey law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Courts applying New Jersey law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

      • a book chapter describing a crime that took place more than ten years previously, in a case brought by victims of the crime;

      • a student newspaper article about a University investigation of misconduct on the part of University staff, including the results of the investigation;

      • a newspaper article about the sale of a large home that was a local historic landmark, including information about the sale price, the number of rooms, and the owner's occupation; and

      • a radio talk show host's disclosure that the plaintiff, a "media monitor," had been in a mental institution, when the plaintiff had engaged in an ongoing and heated public debate with the talk show host about the propriety of the host's views.

      For additional information and discussion of New Jersey cases, see the Reporters Committee's Photographers' Guide to Privacy: New Jersey.

      Relying on Public Records

      In New Jersey, you generally cannot be held liable for publishing truthful information gathered from "public records." Not all government records will qualify as "public records," and the extent of the privilege is not clear. So far, New Jersey courts have applied this privilege to information obtained from court records (and from proceedings in open court), as well as to a claim for disability benefits filed with an administrative agency. In any event, information gathered from any kind of government record that is open to public inspection is unlikely to be a private fact because it is already exposed to the public eye.

      Consent

      New Jersey recognizes consent as a defense to a publication of private facts claim. New Jersey courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in New Jersey is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      New Jersey applies the one-year statute of limitations for defamation claims to publication of private facts claims as well. See N.J. Stat. Ann. 2A:14-3.

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      Publication of Private Facts in New York

      New York does not recognize a legal claim for the publication of private facts. In New York, all invasion of privacy claims are governed by sections 50 and 51 of the New York Civil Rights Law, which prohibit the use of a living person's name or likeness for purposes of trade or advertising without consent. For information on New York cases applying these statutory provisions, see the Reporters Committee's Photographers' Guide to Privacy: New York.

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      Publication of Private Facts in North Carolina

      North Carolina does not recognize a legal claim for the publication of private facts. See Hall v. Salisbury Post, 372 S.E.2d 711 (N.C. 1988). However, the North Carolina Supreme Court has suggested that a plaintiff might be able to bring an intentional infliction of emotional distress claim under some circumstances involving the publication of embarrassing private facts.

       

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      Publication of Private Facts in Ohio

      Ohio recognizes a legal claim for publication of private facts. For the most part, the law in Ohio is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This section addresses only those aspects of Ohio law that are different from the general description.

      Elements of a Private Facts Claim

      In Ohio, the elements of a publication of private facts claim are: (1) a public disclosure; (2) the facts disclosed must concern the private life of an individual, not his or her public life; (3) the matter disclosed must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the disclosure must have been made intentionally, not negligently; and (5) the matter disclosed must not be of legitimate concern to the public.

      Ohio law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Examples of things that Ohio courts have considered to be of legitimate public concern or newsworthy include:

      • a drug raid, including the arrest of an innocent bystander that was broadcast on television;
      • the name and address of a murder suspect's father;
      • the manner in which the police handle domestic violence complaints;
      • information concerning a county government's Medicaid fraud investigation; and
      • allegations of domestic abuse against a police chief.

      For additional information and discussion of Ohio cases, see the Reporters Committee's Photographers' Guide to Privacy: Ohio.

      Relying on Public Records

      In Ohio, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Ohio courts have applied this protection to information obtained from court records, police personnel files, and Internal Affairs Department files, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Ohio recognizes consent as a defense to a publication of private facts claim. Ohio courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Ohio is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for invasion of privacy claims in Ohio is four years. See Ohio Rev. Code Ann. § 2305.9(D).

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      Publication of Private Facts in Pennsylvania

      Pennsylvania recognizes a legal claim for publication of private facts. For the most part, the law in Pennsylvania is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Pennsylvania law that are different from the general description.

      Elements of a Private Facts Claim

      In Pennsylvania, the elements of a publication of private facts claim are: (1) publicity given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.

      Pennsylvania law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Pennsylvania courts consider information newsworthy when it concerns "relatively current events such as in the common experience are likely to be of public interest." Jenkins v. Dell Publ'g Co., 251 F.2d 447, 451 (3d Cir. 1958).

      Courts applying Pennsylvania law have found the following things to be of legitimate public concern or newsworthy:

      • the identity of a person running for public office;
      • the use of public tax dollars to pay a privately retained psychologist;
      • the terms of an employment discrimination settlement;
      • the prosecution of a former police officer, charged with heinous crimes against a minor;
      • a couple's marriage and subsequent divorce; and
      • a photograph of a Pittsburgh Steelers fan with his fly undone.

      In contrast, one court held that a photograph of a woman in a bathtub was not newsworthy because many people engage in bathing on a daily basis and the media generally does not consider it worth reporting publicly. McCabe v. Vill. Voice, Inc., 550 F.Supp. 525, 530-31, n.10 (D.C.Pa. 1982).

      For additional information and discussion of Pennsylvania cases, see the Reporters Committee's Photographers' Guide to Privacy: Pennsylvania.

      Relying on Public Records

      Pennsylvania law recognizes a constitutional privilege for publishing truthful facts contained in public records. So far, Pennsylvania courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Pennsylvania recognizes consent as a defense to a publication of private facts claim. Pennsylvania courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Pennsylvania is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for a publication of private facts claims in Pennsylvania is one year. See Pa. Cons. Stat. § 5523(1).

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      Publication of Private Facts in Texas

      Texas recognizes a legal claim for publication of private facts. For the most part, the law in Texas is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. Here, we will address only those aspects of Texas law that are different from the general description.

      Elements of a Private Facts Claim

      In Texas, in order to recover for public disclosure of private facts, a plaintiff must show that (1) publicity was given to matters concerning his or her private life; (2) the publication of these facts would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern.

      Texas law does not impose liability for publication of information that is of legitimate public concern or newsworthy. A federal court applying Texas law has indicated that "reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of public interest as a matter of law." Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007)

      Texas courts have found the following things, among others, to be of legitimate public concern or newsworthy:

      • information that plaintiff was a gay, HIV-positive police officer;
      • an incident involving the taping of high school students changing clothes by their band director; and
      • details about a blackmailing scheme, through which a husband and wife team extorted thousands of dollars from the wife's lovers.

      In addition, a photograph that was published in a newspaper that accidentally revealed a high school soccer player's genitalia was protected because the photograph accurately depicted a public, newsworthy event. The court reasoned the First Amendment of the U.S. Constitution and the Texas Constitution provided the newspaper with immunity from liability for damages. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 905 (Tex. App. 1991)

      For additional information and discussion of Texas cases, see the Reporters Committee's Photographers' Guide to Privacy: Texas.

      Relying on Public Records

      In Texas, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Texas courts have applied this protection to information revealed in open court proceedings and contained in police records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      Texas recognizes consent as a defense to a publication of private facts claim. Texas courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Texas is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for a publication of private facts claim in Texas is two years. See Tex. Civ. Prac. & Rem. Code § 16.003(a).

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      Publication of Private Facts in Virginia

      Virginia does not recognize a legal claim for the publication of private facts. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2002).

       

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      Publication of Private Facts in Washington

      Washington recognizes a legal claim for publication of private facts. The law in Washington is likely similar to that described in the general page on publication of private facts, but few Washington cases deal directly with this legal claim. This page addresses those aspects of Washington law, to the extent it is known, that are different from the general description.

      Elements of a Private Facts Claim

      In Washington, the elements of a publication of private facts claim are: (1) public disclosure (2) of a matter concerning the private life of another (3) that would be highly offensive to a reasonable person, and (4) that is not of legitimate concern to the public.

      Washington law does not impose liability for publication of information that is of legitimate public concern or newsworthy. In one case, a Washington court indicated that the circumstances of the death of a young woman found naked on the side of the road were a matter of "immediate public concern" even though neither the woman nor her parents were public figures. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980). Washington courts probably would follow the courts of other states in determining what is a matter of legitimate public concern. See the general description for a sense of what others courts have said about this issue.

      Relying on Public Records

      In Washington, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection because such information is already exposed to the public eye. One case has refused to impose liability for publishing information contained in a police investigation report. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980).

      Consent

      No Washington cases address whether consent is a defense to a publication of private facts claim, but the general trend in all states is to recognize such a defense. Washington courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Washington is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations for a publication of private facts claim in Washington is not settled.

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      Publication of Private Facts in the District of Columbia

      The District of Columbia recognizes a legal claim for publication of private facts. For the most part, the law in D.C. is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of D.C. law that are different from the general description.

      Elements of a Private Facts Claim

      In D.C., the elements of a publications of private facts claim are: (1) publication; (2) of private facts; (3) in which the public has no legitimate concern; and (4) the publication of which would cause suffering, shame, or humiliation to a person of ordinary sensibilities.

      D.C. law does not impose liability for publication of facts that are "matters of legitimate public or general interest." Dresbach v. Doubleday & Co., 518 F. Supp. 1285, 1287 (D.D.C. 1981). This "newsworthiness" exception is not limited to dissemination of news about current events or public affairs, but also protects "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period." Vassiliades v. Garfinckel's,492 A.2d 580, 589 (D.C. 1985).

      Individuals retain a zone of privacy relating to their private lives, however, and the defense will not protect the disclosure of facts unless there is a "logical nexus" (i.e., reasonable relationship) between the disclosed facts and the topic of public interest. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

      Courts applying D.C. law have found the following things, among others, to be newsworthy (i.e., of legitimate public or general interest):

      • information about the plaintiff's family life as a child, in the course of a book about the plaintiff's brother murdering their parents twenty years before;
      • information about an attorney's personal assets and business ventures; and
      • a report about the alleged drug use of a police officer and its cover-up.

      Courts applying D.C. law have found the following things to be potentially non-newsworthy:

      • a child's description of a specific instance of sexual abuse; and
      • "before-and-after" photographs of the plaintiff which revealed that she had undergone plastic surgery, in the context of a medical doctor's public presentation on the benefits of plastic surgery.

      For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: District of Columbia.

      Relying on Public Documents

      In the District of Columbia, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. In Wolf v. Regardie, 553 A.2d 1213, 1221 (D.C. 1989), the D.C. Court of Appeals refused to impose liability on a defendant who published financial information gathered from "court files, tax ledgers, and agency records of this City and the federal government." The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

      Consent

      The District of Columbia recognizes consent as a defense to a publication of private facts claim. D.C. courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in D.C. is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

      Statute of Limitations

      The statute of limitations in D.C. for publication of private facts claims is not entirely clear. A number of federal court decisions applying D.C. law have held that the one-year statute of limitations for defamation actions applies to claims for invasion of privacy, which includes claims for publication of private facts. D.C. Code § 12-301.

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      Using the Name or Likeness of Another

      In most states, you can be sued for using someone else's name, likeness, or other personal attributes without permission for an exploitative purpose. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. There are two distinct legal claims that potentially apply to these kinds of unauthorized uses: (1) invasion of privacy through misappropriation of name or likeness ("misappropriation"); and (2) violation of the right of publicity. (The "right of publicity" is the right of a person to control and make money from the commercial use of his or her identity.) Because of the similarities between misappropriation and right of publicity claims, courts and legal commentators often confuse them. We will not try to exhaustively explain the differences between these two legal claims here. It is mostly important for you to understand the legal principles that are common to both claims; we will point out relevant differences below and on the state pages when appropriate.

      You might be familiar with the now-famous case of Alison Chang, which is a good example of a potentially unlawful use of someone's name or likeness. In September 2007, Chang's parents filed a lawsuit in state court in Texas against Virgin Mobile Australia and Creative Commons. Virgin Mobile Australia obtained a photograph of Chang from Flickr, where is was posted with a CC "Attribution" license, which gave Virgin Mobile permission from a copyright perspective to use the photograph in a commercial setting so long as it gave attribution to the photographer who took the photo. (For information on copyright licensing, see Copyright Licenses and Transfers.) Virgin Mobile used the photograph in an advertising campaign to promote its free text messaging and other mobile services without getting permission from Chang or her parents to use her name or likeness. Chang's parents sued Virgin Mobile for misappropriation of her likeness, and the facts would also have supported a claim for violation of her right of publicity. They brought other claims against Creative Commons, which they dismissed shortly after filing the lawsuit. The case, which was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile, is interesting because it highlights the fact that somebody seeking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity.

      The Chang case involved a clearly commercial use of her likeness. As a general matter, you should never use someone's name or photograph in advertising or promotion of your website or blog without permission. The same goes for creating merchandise that you plan to sell to the public which incorporates someone's name or photograph. With the limited exception for "incidental advertising use" discussed below, you need to get consent for commercial uses like these. But what about a casual reference to your neighbor in a blog post? Or what if you write an article about a local politician that features his photograph? Or what if you publish a photograph that you took of a famous actress walking down the red carpet at the Oscars? Fortunately, the law does not give individuals the right to stop all mention, discussion, or reporting on their lives or activities. The common law of most states creates an exception to liability for news reporting and commentary on matters of public interest, and many state statutes explicitly exempt news reporting and other expressive activities from liability. Despite these substantial protections, it is a good practice to obtain consent of the person depicted when you publish photographs or other personal information about someone on your blog, especially if your use might be construed as commercial or promotional.

      Who Can Sue for Unlawful Use of Name or Likeness

      Only human beings, and not corporations or other organizations, have rights of publicity and privacy interests that can be invaded by misappropriation of name or likeness. Thus, only individuals can sue for unlawful use of name or likeness, unless a human being has transferred his or her rights to an organization. Note that companies may sue you for trademark infringement and unfair competition if you exploit their brand names for commercial purposes. See the Trademark section for details.

      In some states, celebrities cannot sue for misappropriation of name and likeness (on the theory that they have no privacy interest to protect), and non-celebrities may not sue for violation of the right of publicity (on the theory that their personalities have no commercial value). The growing trend, however, is to permit both celebrities and non-celebrities to sue for both misappropriation and violation of the right of publicity, as long as they can establish the relevant kind of harm.

      You cannot invade the privacy of a dead person, so you generally cannot be sued for misappropriation of the name or likeness of a dead person, unless the misappropriation took place before the person in question died. However, in many states the right of publicity survives after death, so you could be sued for violating the publicity rights of a dead person. This is most likely to come up with dead celebrities.

      Elements of a Claim for Unlawful Use of Name or Likeness

      A plaintiff must establish three elements to hold someone liable for unlawful use of name or likeness:

      1. Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff's name or likeness, but the law protects certain other personal attributes as well.
      2. For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone's name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff's identity and a matter of legitimate public interest.
      3. No Consent: The plaintiff must establish that he or she did not give permission for the offending use.

      Below, we address these elements in greater detail. Keep in mind that misappropriation and right of publicity are state-law legal claims, so there is some variation of the law in different states. For state-specific information, see State Law: Right of Publicity and Misappropriation.

      Use of a Protected Attribute

      A plaintiff bringing a misappropriation or right of publicity claim must show that the defendant used attributes of his or her identity that are protected by the law. Usually, this means showing that the defendant used the plaintiff's name or likeness. With regard to use of a name, it does not have to be a full or formal name, just something that is sufficient to identify the plaintiff. Using a well-known nickname can suffice. For instance, in Faegre & Benson, LLP v. Purday, 367 F. Supp. 2d 1238 (D. Minn. 2005), the court held that the defendant had misappropriated the plaintiff's name when he used the pseudonym that the plaintiff blogged under in the domain name for a website. "Likeness" refers to a visual image of the plaintiff, whether in a photograph, drawing, caricature, or other visual presentation. The visual image need not precisely reproduce the plaintiff's appearance, or even show his or her face, so long as it is enough to evoke the plaintiff's identity in the eyes of the public.

      The law protects other personal attributes or aspects of identity from unauthorized use as well. For example, courts have held that use of a celebrity's voice can violate the right of publicity. See, e.g., Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). One court held a defendant liable for using the slogan "Here's Johnny" as a brand name for portable toilets because it sufficiently evoked Johnny Carson's identity. See Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). In other examples, courts have held defendants liable for using a photograph of the plaintiff's race car in a television commercial, see Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), and creating a commercial featuring a robot decked out to resemble Vanna White and posing next to a Wheel of Fortune game board, see White v. Samsung Elec. Am., Inc., 917 F.2d 1395 (9th Cir. 1992). In all of these cases, the common rationale was that the attribute in question was sufficient to identify the plaintiff and evoke their identity for the public.

      Note also that the Supreme Court has recognized that state law may protect a celebrity's right of publicity in the content of his or her unique performance. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the Court held that Ohio could constitutionally recognize Hugo Zacchini's right of publicity in his "human canonball" performance.

      Some state statutes limit liability to the unauthorized use of particular attributes. For example, the New York statute only covers "name, portrait, picture or voice," N.Y. Civ. Rights Law § 51, the California statute covers only "name, voice, signature, photograph, or likeness," Cal. Civ. Code § 3344(a), and the Massachusetts statute covers only "name, portrait, or picture," Mass. Gen. Laws ch. 214, § 3A. Depending on state law, relief for the use of a wider array of personal attributes may be available under the common law (i.e., judge-made law). See State Law: Right of Publicity and Misappropriation for details.

      Exploitative Purpose

      A plaintiff bringing a misappropriation or right of publicity claim must show that the defendant used his or her name, likeness, or other personal attribute for an exploitative purpose. The meaning of "exploitative purpose" differs depending on whether we are dealing with a right of publicity or a misappropriation claim:

      Exploitative Purpose: Right of Publicity

      The right of publicity is the right of a person to control and make money from the commercial use of his or her identity. A plaintiff that sues you for interfering with that right generally must show that you used his or her name or likeness for a commercial purpose. This ordinarily means using the plaintiff's name or likeness in advertising or promoting your goods or services, or placing the plaintiff's name or likeness on or in products or services you sell to the public. Therefore, it is a bad idea to create an advertisement suggesting that a celebrity -- or anyone for that matter -- endorses your website or blog. It is equally unwise to use someone else's name as the title of your website or blog, especially if you host advertisements. You can be liable even without creating a false sense that the person in question endorses your product or service; the key is that you are exploiting the plaintiff's identity to drive traffic or obtain some other commercial benefit.

      It may also be an exploitative commercial use to sell subscriptions to your site in return for access to content relating to a specific (usually famous) individual. For instance, one court held that a website operator violated Bret Michaels and Pamela Anderson's rights of publicity by providing website users access to a Michaels-Anderson sex video in return for a subscription fee. See Michaels v. Internet Entm't Group, 5 F. Supp.2d 823 (C.D. Cal. 1998). In another example, a court issued an injunction prohibiting a website operator from violating Paris Hilton's right of publicity by selling subscriptions to a website providing access to photographs of her and other private materials belonging to her. See Hilton v. Persa, No. 07-cv-00667 (C.D. Cal. Feb. 20, 2007), and our database entry on the case for additional details.

      Exploitative Purpose: Misappropriation of Name or Likeness

      Most lawsuits claiming invasion of privacy through misappropriation of name or likeness also involve commercial uses of the plaintiff's identity, such as in advertising or promoting products or services. For example, one of the first cases to recognize a legal claim for misappropriation sprang out of the defendant's use of the plaintiff's photograph in an advertisement for life insurance. See Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905). You also may be held liable for some non-commercial uses of someone's name or likeness if you exploit the plaintiff's identity for your own benefit.

      For example, one court has held that an anti-abortion activist who registered domain names incorporating the names and nicknames of his ideological rivals had misappropriated their names for his own benefit. See Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. 2005). The court also held that the defendant had committed misappropriation through a form of sock puppetry -- namely, he posted comments on his own bulletin board pretending to be lawyers from a law firm that fought for abortion rights; in these comments, he expressed opinions and views that were favorable to his own position that abortion is immoral. See Faegre & Benson, LLP v. Purdy, 447 F. Supp. 2d 1008 (D. Minn. 2006). In another case, a professor created non-commercial websites and email accounts containing portions of the names of several of his former colleagues. Using these email accounts, the professor then sent emails to a number of universities, pretending to nominate these former colleagues for university positions and directing readers back to his websites, which contained critical posts about the nominated individuals. When the University and his former colleagues sued, an Indiana state court found that he had committed misappropriation. The Supreme Court of Indiana affirmed the lower court's decision, holding that the professor had exploited the plaintiffs' names for his own benefit "in that [the misappropriation] enabled him to pursue a personal vendetta." Felsher v. Univ. of Evansville, 755 N.E.2d 589, 600 (Ind. 2001).

      One court has held that posting a photograph of a real estate agent on a "gripe site" dedicated to criticizing him was not sufficiently exploitative to impose liability. The court reasoned that the defendant had not published the photo in order to "tak[e] advantage of [the real estate agent's] reputation, prestige, or other value associated with him, for purposes of publicity," but only "as a part of a declaration of his opinion." McMann v. Doe, No. 06-11825-JLT (D. Mass. Oct. 31, 2006).

      As a general matter, then, it is a good idea to avoid impersonating other individuals on the Internet for political or even personal reasons, because that may be sufficiently exploitative to result in liability for misappropriation. On the other hand, simply using someone's name or likeness in the process of expressing your opinion is probably safe, especially given the exception for news and commentary discussed below.

      Consent

      Consent is a complete defense to a legal claim for misappropriation of name or likeness or violation of the right of publicity. When you gather information from or take photographs of an individual, it is a good practice to ask for consent to use the material on your website, blog, or other online platform. Make sure to get consent in writing whenever possible.

      When taking photographs or video of someone, you can use a model release form. Some examples of model releases can be found at the American Society of Media Photographers (model release for adult, model release for minor child, simplified model release, and pocket release), and the New York Institute of Photography. You can find additional samples by doing a basic Internet search for "model release." Note that you can choose between various types of model release, which are of varying complexity. You may be better off using one of the simpler forms, unless you are planning on using someone's name or likeness in advertising or an obviously commercial use. All of these sample releases need to be customized to your own particular circumstances and purposes. You should not use someone's photograph for a purpose or in a type of media not covered by the release because then the release will be ineffective.

      For interviewing someone (with or without taking photographs), it is also good practice to obtain an interview release form. This release can protect you against publication of private facts claims in addition to misappropriation and right of publicity claims. Some examples of interview releases can be found in Stanford's Copyright and Fair Use Guide, and at EmilioCorsetti.com and the University of Michigan Press. You can find additional samples by doing a basic Internet search for "interview release," and the book The Copyright Permission and Libel Handbook by Lloyd J. Jassin and Steven C. Schecter has two excellent examples. There are a number of different kinds of interview release forms; you will need to choose and customize one to suit your own purposes. As above, you should not use someone's name or likeness for a purpose or in a type of media not covered by the release.

      If, instead, you obtain photographs for use on your website or blog from a publicly available source on the Internet, it may be more difficult to obtain the consent of the persons depicted in those photographs, especially if they are celebrities. In close cases, where you are not sure whether your proposed use is commercial or otherwise exploitative, or where you are unsure whether your use fits within the protection for "news and commentary" (see below), you should do your best to obtain consent. If you cannot get it, then you should consider using a different image. When using photographs that you did not personally take, you need to worry about copyright law in addition to name or likeness issues. Getting permission from the person depicted in the photograph only stops a claim for misappropriation or violation of the right of publicity. You also need to get copyright permission from the person who took the photograph (or whoever owns the copyright). For details on getting permission to use a copyrighted work, see Copyright Licenses and Transfers.

      Children cannot consent on their own behalf. When using the name or likeness of a minor (generally someone under the age of eighteen), you should seek consent from the minor's parent. Some of the example release forms linked to above are geared toward getting the consent of minors. Keep in mind that people giving you consent can revoke (i.e., take back) that consent anytime before the use of their name or photograph takes place. Therefore, you should honor the decisions of consenting persons who suddenly change their minds, so long as publication hasn't already taken place.

      Free Expression Limitations on Liability

      Fortunately, the law places important limitations on misappropriation and right of publicity claims, which help to protect your right of free expression and to safeguard the free flow of information in society. Below, we discuss these limitations in detail.

      Exception for News and Commentary

      You generally cannot be held liable for using someone's name, likeness, or other personal attributes in connection with reporting or commenting on matters of public interest. Many courts view this as a constitutional privilege based on the First Amendment, and some states have statutes explicitly exempting news reporting and commentary on public issues from liability. It is not always easy to determine what will qualify as news or legitimate commentary, especially on the Internet. But the courts traditionally have taken an extremely broad view of "news" and "commentary" -- it encompasses any reporting or commenting on current events or social issues, "soft news" which is of primarily entertainment value, and conveyance of information on past events of interest. The exception is extremely broad, and would encompass almost anything that conveys information or comments on a topic of even arguable public interest. For example, courts have found that the following media uses qualified for the exception:

      • an Internet bulletin board devoted to discussing Howard Stern's candidacy for governor;
      • an unauthorized biography of a celebrity;
      • a magazine report on meeting women at summer concerts, with photos of some of the women;
      • a TV news report on allegations that an orthopedist was sexually assaulting his female patients;
      • a magazine article discussing a research study about how caffeine affects fertility, with a photo of a large family;
      • a fundraising letter discussing public policy questions in the field of education and relating a local political figure's praise of the organization sending the letter;
      • a magazine article on contemporary attitudes of Irish-Americans in New York City, including a photo of an individual dressed up for the Saint Patrick's Day parade;
      • a magazine article featuring the plaintiff as "Asshole of the Month," with a photograph of the plaintiff superimposed over the rear-end of a bent-over naked man;
      • a book profiling the various leading securities experts and analyzing their strategies;
      • a magazine article about a "bomber jacket," with information about the approximate price, the name of the designer, stores where it could be purchased, and a photograph of the plaintiff modeling the jacket;
      • a report that a professional female tennis star had posed nude for a photograph; and
      • a report on teenage grooming.

      There are literally thousands of additional examples. While most of these cases involved the traditional print and broadcast media, there is no reason to believe that the exception for news and commentary will not apply to your online activities. One case, Stern v. Delphi Internet Services Corporation, 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995), addressed this question directly and held that the news and commentary exception applied to the defendant's online bulletin board service.

      Hosting advertisements on your site does not deprive you of the news and commentary exception. The courts have long recognized that for-profit news organizations that sell advertising space are entitled to protection. See, e.g., Arrington v. New York Times, 434 N.E.2d 1319, 1322 (1982); Berkos v. National Broad. Co., 515 N.E.2d 668, 679 (Ill. App. Ct. 1987). This principle should extend to online platforms that sell advertising space.

      There are two important limitations on the exception for news and commentary:

      First, if the plaintiff can show that your use of his or her name or likeness bears no reasonable relationship to the content of the news or commentary presented, then you may be liable for creating an "advertisement in disguise." This usually comes up with photographs used to illustrate otherwise newsworthy stories. As a general rule, it is never a good idea to illustrate an article or post with a completely unrelated photograph, especially if the purpose of the photograph is simply to catch the public's attention or draw traffic to your site.

      Some courts have let media defendants get away with using photographs of people who are not actually discussed in the article in question. For instance, the New York Court of Appeals held that a magazine lawfully could use the photograph of a large family to illustrate its article on a research study about caffeine and fertility, even though the family did not participate in the study. The court ruled that the photograph of the family was reasonably related to the "theme" of fertility that ran throughout the article. See Finger v. Omni Publ'n Int'l Ltd., 566 N.E.2d 141 (N.Y. 1990). Other courts have rejected this view, holding that there is no reasonable relationship between the photograph and the subject matter of the article if the person in the photograph is not mentioned in the text. For instance, in Christianson v. Henry Holt & Company, 2007 WL 2680822 (C.D. Ill. June 29, 2007), the court ruled in favor of a woman whose photograph appeared on the cover of the book Nickel and Dimed. Although the book itself dealt with a newsworthy topic, the author and publisher could not use the woman's photograph on the cover because she was never mentioned in the book.

      Using a photograph of a totally unrelated person to illustrate a story may also create liability for defamation and false light invasion of privacy. See Overview of Publishing Information That Harms Reputation for details on these two legal claims.

      Second, the Supreme Court has held that the First Amendment does not protect the media when they appropriate a celebrity's entire performance without compensation, even in connection with a newsworthy story or program. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), a news reporter videotaped Hugo Zacchini's "human cannonball" act at a county fair without permission, and his employer broadcast the entire fifteen-second act on the evening news. The Supreme Court held that the First Amendment did not prevent liability for violation of the right of publicity, even though the broadcast was newsworthy. Therefore, it is not a good idea to record and publish all or most of someone's performance (e.g., a live musical or dance performance) without permission, even if the performance is legitimately newsworthy.

      Protection for Creative Works

      The First Amendment and the laws of many states also protect your use of someone's name or likeness in creative works and other forms of entertainment. Included in this category are things like novels that include mention of real-life figures, historical fiction, movies based loosely on real-life events, "docudramas," works of art that incorporate an individual's photo or image, and acts of parody directed at an individual. Some state statutes explicitly exempt these kinds of work from liability for misappropriation or violation of the right of publicity. See, e.g., 42 Pa. Cons. Stat. § 8316(e)(2) (link is to entire code; you need to click through to title 42, part VII, chapter 83, subchapter A, and then choose the specific provision); Wash Rev. Code § 63.60.070(1). In other states, the courts look at the creative or artistic work in question and decide on a case-by-case basis whether the First Amendment values at stake trump the plaintiff's rights of privacy and publicity. See State Law: Right of Publicity and Misappropriation for details.

      As a general matter, you will not be held liable for using someone's name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone's name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person's identity.

      For instance, in one case an artist created and sold t-shirts that contained a realistic depiction of The Three Stooges, and the company which owns the publicity rights sued. The California Supreme Court recognized that the First Amendment generally protects artistic and creative works, but found that the t-shirts in question were not sufficiently transformative because "the artist's skill and talent [was] manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame." Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 810 (Cal. 2001). In another case, the artist Barbara Kruger created an untitled work that incorporated a photograph of Charlotte Dabny holding a large magnifying glass over her right eye (which itself was a famous photograph by German photographer Thomas Hoepker). Kruger cropped and enlarged the photographic image, transferred it to silkscreen and superimposed three large red blocks containing the sentence "It's a small world but not if you have to clean it." A New York court held that Dabny could not recover for misappropriation because Kruger's artistic work was protected by the First Amendment because Kruger had added sufficiently transformative elements. See Hoepker v. Kruger, 200 F. Supp.2d 340 (S.D.N.Y. 2002).

      Incidental Advertising Use

      If you use someone's name or likeness in connection with news reporting, commentary, or a creative work protected by the First Amendment, then you can also use it in connection with truthful advertising of your own work. Courts refer to this as the "incidental use" doctrine. This doctrine permits TV news shows to use "teaser" ads including images of people reported on during the main program, and publishers to create book jackets and advertisements for unauthorized biographies containing the name or photograph of the book's subject.

      One court has held that this doctrine applies to online activities as well. In Stern v. Delphi Internet Services Corporation, 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995), an Internet service provider set up an on-line bulletin board dedicated to discussion of Howard Stern's candidacy for governor. To advertise its service, the company took out a full page advertisement in New York Magazine featuring a photograph of Stern in leather pants which exposed his buttocks. An accompanying caption read "Should this man be the next governor of New York?" The advertisement invited readers to purchase Internet access from the ISP and to join the online debate about Stern. The court held that, because the ISP could lawfully use Stern's name for its online bulletin board (i.e., it fit the news and commentary exception -- see above), it could also use his name and photo to advertise that service. The court noted that "New York courts have consistently held that the incidental advertising exception applies to all 'news disseminators,' not just newspapers and magazines." There is no reason to believe courts in other states would not reach a similar result.

      So, for example, if you write an article about a celebrity, you should be able to use that celebrity's name and image sparingly for purposes of promoting the article.

      Special Types of Websites

      Social Networking Sites

      Operating a social networking site presents special problems relating to misappropriation and rights of publicity. Such sites obviously incorporate the names and likenesses of those people who join the network, and it is not yet clear from a legal perspective whether the type of information conveyed by a social networking site fits into the "news and commentary" exception to liability. Although the famous social networking sites have teams of well-paid lawyers, others interested in incorporating social networking functionality into their websites need to be aware of how using the name or likeness of another can lead to liability.

      Because of the legal uncertainty surrounding this topic, people interested in using social networking functionality should seek consent from account holders in their terms of use. A clause like this, from Facebook's terms of use, may be helpful:

      By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

      This should help protect against misappropriation and right of publicity claims brought by users based on the photos and other materials they upload. Incidentally, having users agree to such a clause also gives you the permissions you need to avoid copyright claims brought by users.

      A different problem arises when someone creates a false profile on a social networking site. In these cases, the person whose name or likeness is being used improperly is not an account holder and has not given consent. The law is not settled on this point yet, but it appears that a person whose name or likeness is posted to a false profile may have a valid legal claim for misappropriation and/or violation of the right of publicity. Beyond that, false profiles often lead to defamation claims against the person who posted the false profile. See Law.com's article, Fake Online Profiles Trigger Suits, for examples. From the perspective of the website operator, defamation claims based on fake profiles are not a serious legal threat because section 230 of the Communications Decency Act (CDA 230) provides immunity from defamation claims based on third-party content. See Immunity under CDA 230 for details on immunity from liability for user-generated content.

      In Doe v. Friendfinder Network, Inc., 2008 WL 803947 (D.N.H. Mar. 27, 2008), someone created a false profile of a real woman (we'll call her Jane Doe) on the social networking site "Adult Friendfinder." The false profile included biographical information about Jane, along with spurious statements about her sexual proclivities. The photograph posted to the profile was not Jane, but she alleged that the biographical information was sufficient to identify her to people in her community. The social networking site not only hosted the fake profile, but incorporated it into teaser advertisements that appeared on Internet search engines when users entered search terms matching some of the information in the profile, including true biographical information about Jane. The teaser ads also appeared on other "sexually related" websites. Jane sued the adult social networking site, bringing various state law claims including invasion of privacy and publicity rights. The court held that, under the circumstances, she had stated a valid claim for violation of her right of publicity. In addition, the court held that CDA 230, which immunizes website operators from many state law legal claims based on user-generated content, does not apply to right of publicity claims. Therefore, Jane's claim against the social networking site could go forward, despite the fact that a third-party created the profile.

      To deal with the fake profile issue, you might want to include a clause in your terms of service that requires users not to post material that would violate a third-party's privacy or publicity rights. Technically, this might help you recover some of the costs if you are sued by someone for hosting a fake profile. In reality, it may be impossible to identify who posted the fake profile, and they may not have any money to pay you.

      Your best defense against these types of lawsuits is to create a mechanism for aggrieved individuals to submit complaints and to respond expeditiously to complaints about fake profiles. In addition, you can help protect yourself by not using user profiles in any sort of advertising or site promotion.

      Fan Sites

      Fan sites pertaining to a celebrity, such as a sports figure, musician, or movie star, are potentially vulnerable to right of publicity and misappropriation claims because they rely so heavily on the name and likeness of their particular hero. In the last year, we've documented two examples of this problem. In July 2007, Patrick O'Keefe, the operator of the fan site MarianoRivera.com received a cease-and-desist letter from SFX Baseball Group, which represents Yankees baseball player, Mariano Rivera. The letter asserted that the site's use of the domain name, marianorivera.com, violated Mr. Rivera's right of publicity and federal trademark law. After discussions, an SFX representative told O'Keefe that he could continue to operate the website, but refused to give any assurances about the future. See our database entry, SFX Baseball Group v. MarianoRivera.com, for details. In another example, pop star Prince sent a number of cease-and-desist letters to Prince fan sites in November 2007, claiming right of publicity violations and copyright infringement. The letters asked the fan sites to remove all photographs, images, lyrics, album covers, and anything linked to Prince's likeness. After Prince got a lot of bad publicity, the parties entered into negotiations, which appear to be ongoing. See our database entry, Prince v. Prince Fan Sites, for details.

      Whether fan sites like these actually violate the publicity or privacy rights of their idols is not clear under the law. The best legal arguments in favor of fan sites are probably that they provide "news" about the celebrity in question and that their use of the celebrity's name or likeness is not commercial or otherwise exploitative (this argument may be stronger if the site hosts no advertisements whatsoever). These sites should avoid selling merchandise, like t-shirts or coffee mugs, emblazoned with the name or likeness of their particular celebrity. In the end, we will have to await further guidance from the courts on these issues.

      Fan sites also raise copyright and trademark issues; consult the Intellectual Property section for more information.

      Statute of Limitations

      The "statute of limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over took place. This time limit is set by state law and is intended to promote fairness and keep old cases from clogging the courts. In misappropriation and right of publicity cases, the statute of limitations ordinarily runs from the date of first publication or exhibition of the offending use of the plaintiff's name or likeness. The limitations period varies based on state law; for misappropriation and right of publicity claims, it can be anywhere from one to six years. For specific information on limitations periods applicable to particular state law claims, see the State Law: Right of Publicity pages.

      Jurisdiction: 

      Subject Area: 

      State Law: Right of Publicity

      Each state has its own definition of what constitutes a violation of the right of publicity. Choose from the list below to determine whether your state recognizes a legal claim for violation of the right of publicity, and, if so, how it defines the elements of and defenses to such a claim. (Note that the guide does not include every state at this time.)

      Subject Area: 

      Arizona Right of Publicity Law

      This page covers legal information specific to the State of Arizona. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Arizona state courts have not explicitly recognized a common law right of publicity, although at least one older state case recognized a claim for invasion of privacy based upon "mental pain and annoyance" caused by the unauthorized display of one's picture. Reed v. Real Detective Pub. Co., 162 P.2d 133, 128 (Ariz. 1945). It is not clear whether this right of privacy survives in modern Arizona law. However, the United States District Court for the District of Arizona has held that there is "no reason why a claim for invasion of the right of publicity should not be recognized in Arizona." Pooley v. Nat'l Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000).

      Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians. A.R.S. §§ 12-761, 13-3726.

      THE COMMON LAW RIGHT

      What the Common Law Right of Publicity Protects

      Although the case law is sparse, the right of publicity in Arizona at least protects a “celebrity’s name and likeness.” Pooley at 1112.  In Pooley, a promotional video depicted a professional golfer teeing off and walking across the golf course while a voice-over identified him by name.  The United States District Court for the District of Arizona held that this was sufficient grounds for a cause of action.

      What Constitutes a Common Law Violation

      In Pooley, a professional golfer shot a hole-in-one for a million dollars.  Years later, a marketing organization used video footage of his feat, without his permission, to advertise its own “Million Dollar Hole-in-One” promotional product.  The United States District Court for the District of Arizona applied a four factor test to determine whether or not the plaintiff had a cause of action for infringement of his right of publicity: “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  Pooley at 1111–1112.  The court held that the plaintiff could bring a claim for infringement of his right of publicity. 

      Certain “incidental” uses are exempt from right of publicity claims as they fail to convey a commercial advantage to a defendant. In particular, uses such as “news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses” is not considered “use for purposes of trade,” and therefore these uses are incidental.  Pooley at 1112.  The United States District Court for the District of Arizona has considered several factors in determining whether a use is incidental, such as:

      (1) whether the use has a unique quality or value that would result in commercial profit to the defendant; (2) whether the use contributes something of significance; (3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.

      Pooley at 1112. In Pooley, defendants argued that the use of the plaintiff’s name and likeness was incidental because it only lasted for several seconds of an eight minute video.  The court disagreed, finding that the plaintiff’s identity was “crucial” (italics in original) to the commercial, as it was necessary to show golfers and potential buyers of the defendant’s event that million dollar hole-in-one shots were possible.  The court also explained that the commercial’s depiction and identification of an amateur golfer shooting a hole-in-one did not change their analysis, as the video did not explain that the amateur too had won a million dollars.  Instead, the “plaintiff was specifically selected because of his distinction and his wide market appeal.”

      If a plaintiff consents to the use of their image, then that use is exempt from a right of publicity claim.  In Pooley and in Lemon v. Harlem Globetrotters Int'l, Inc., 437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006), the federal district court in Arizona indicated that the plaintiff has the burden of proof to show lack of consent, rather than the burden being on the defendant to establish that consent was granted.

      Transfer of rights by death or assignment

      If Arizona’s early conception of the right to control one’s image as a subset of the general right of privacy remains good law, the right of publicity would likely not descend under Arizona law. A.R.S. § 14-3110 indicates that privacy rights do not survive the death of the person.  Similarly, such rights would likely not be assignable, as Arizona courts have held that privacy claims cannot be assigned.  Martinez v. Green, 131 P.3d 492, 495 (Ariz. Ct. App. 2006). It is not clear whether a right of publicity would be descendible or assignable if Arizona has abandoned this concept.

      Defenses

      The First Amendment can protect speech that would otherwise infringe on a plaintiff’s right of publicity.  The United States District Court for the District of Arizona draws a distinction between “commercial” and “communicative” speech, noting that only for the latter do a defendant’s First Amendment protections outweigh the plaintiff’s right of publicity.  Pooley at 1113.  In Pooley, the court explained that when the use of an identity is “strictly to advertise a product or service,” the First Amendment does not protect that use.  In Pooley the court held that although the hole-in-one was a public event and news in its own right, the subsequent incorporation of the plaintiff’s identity into a promotional video was “strictly commercial.”  Pooley at 1114.  The court explained that the golfer’s identity was used in “the context of an advertisement,” and not “simply to communicate an idea.”  Moreover, the court was concerned that the video suggested, inaccurately, that the plaintiff was associated with the defendant.

      Note that consent, which in some other states is considered an affirmative defense in right of publicity cases, relates to the plaintiff’s brden of proof in Arizona – see above.

      A common-law right of publicity claim in Arizona is likely to be subject to the state's two-year statute of limitations for personal injury cases. A.R.S.  § 12-542. 

      Damages and other remedies

      In Pooley, the United States District Court for the District of Arizona suggests that injunctive relief and damages are both available to a plaintiff bringing a claim for right of publicity.  Pooley at 1111.

      In Lemon, the United States District Court for the District of Arizona holds that “the plaintiff may recover the proportion of the defendant's net profits that is attributable to the unauthorized use,” and notes that is the defendant’s burden to demonstrate which sales are attributable to other factors and what expenses need be deducted from revenue.  Lemon at 1103.  However, the context implies that the court may view this as one way to calculate damages, and other techniques (such as the “fair market value” of a plaintiff’s identity) may be used as well.   Lemon at 1103. 

      A group of plaintiffs bringing claims for infringement of their rights of publicity need to be able to show that they have each suffered individual damages.  In Lemon, the court declared a report calculating damages “irrelevant” because it presented total damages in a manner that could not be accurately broken out for each plaintiff, but allowed the suit to proceed because  other evidence provided a basis for determining what damages had been suffered by each plaintiff.  Lemon at 1103-1107.

      THE STATUTORY RIGHT

      Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians.  A.R.S. §§ 12-761, 13-3726.  § 12-761 recognizes a civil cause of action for infringement of the right of publicity for any soldier, alive or deceased, and § 13-3726 makes it a class 1 misdemeanor to infringe the right of publicity of a deceased soldier.

      There are several exceptions listed in the statutes which are not considered violations of a soldier's right of publicity:

      1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

      2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

      3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

      4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3 of this subsection.

      5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

      6. A soldier's picture or portrait that is not facially identifiable.

      7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.

      Publishers concerned that their activities may infringe on a soldier’s right of publicity should read the statutes and also review Frazier v. Boomsma, 07-CV-8040-PHX-NVW, 2008 WL 3982985 (D. Ariz. Aug. 20, 2008).  In Frazier, the United States District Court for the District of Arizona held that enforcing A.R.S. § 13-3726 against a man selling protest t-shirts with the names of dead soldiers would violate the First Amendment, and left open the possibility that the statute is unconstitutional on face.  

      A.R.S. § 12-761 states that a soldier’s right of publicity survives death and lists (in order) who may then enforce that right. A.R.S. § 13-3726, as stated above, applies only to deceased soldiers.  Claims under A.R.S. § 12-761 must be brought within five years of the offending publication.

      Jurisdiction: 

      Subject Area: 

      California Right of Publicity Law

      This page covers legal information specific to the State of California. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right. 

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Generally speaking, the Right of Publicity protects a person's right in his or her name and likeness. California's statute, Cal. Civ. Code § 3344, protects a person's:

      • name, 
      • voice, 
      • signature, 
      • photograph, and 
      • likeness.

      The term “voice” applies only to a person’s actual voice, not to imitations. See Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988). However, as noted below, the common law right of publicity might apply to voice imitators. 

      The term “photograph” includes still or moving pictures, but the person in question must be “readily identifiable” (meaning someone could “reasonably determine” that the photo depicts the plaintiff). However, pictures of crowds, such as on public streets or at sporting events, do not run afoul of the statute as long as no people are “singled out as individuals” in the photo. § 3344(b)(3).

      The term “likeness” is the most difficult of the five protected categories to precisely define. Courts have used the “readily identifiable” test to conclude that drawings, if sufficiently detailed, can constitute a “likeness.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-93 (9th Cir. 1998). In another case, the court ruled that a robot, if sufficiently detailed, could be a “likeness.” Wendt v. Host Intern., Inc., 125 F.3d 806, 810 (9th Cir. 1997). Less detailed robots, though, may fall short of the “likeness” mark. White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

      What Constitutes a Statutory Violation

      California's statute protects against uses of a person's likeness for advertising purposes. Specifically, the statute prohibits “knowing” use of a person’s name/likeness/etc.,

      on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent[.] (Cal. Civ. Code § 3344(a))

      The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute. Rather, the statute focuses specifically on advertising uses of a person’s likeness:

      [I]t shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required[.] (Cal. Civ. Code § 3344(e))

      Courts have thus interpreted the statute to impose a three-step test:

      1. Was there a “knowing” use of the plaintiff’s protected identity?  
      2. Was the use for advertising purposes? 
      3. Was there a direct connection between the use and the commercial purpose?

      See, e.g., Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998). If the answer to all three questions is “yes,” then there has been a violation of the statute.

      The statute also contains an explicit exception for uses “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” § 3344(d).

      Rights of the Deceased

      California has a separate statute protecting posthumous rights of publicity, found at Cal. Civ Code § 3344.1. The right lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right. The substance of the right is largely the same, with the following exceptions:

      • The holder of a deceased person's right of publicity must register the claim with California's Secretary of State, and the rights-holder cannot recover damages for any use that occurs before registration. § 3344.1(f)(1).
      • To qualify under the statute, the deceased person's right of publicity must have had "commercial value at the time of his or her death, or because of his or her death." § 3344.1(h).
      • There is an exemption for any uses in a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value," or an advertisment for any of these works. § 3344.1(a)(2).

      THE COMMON LAW RIGHT

      The Traditional Four-Step Test

      Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:

      1. The defendant’s use of plaintiff’s “identity”; 
      2. The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; 
      3. Lack of consent; and 
      4. Resulting injury.

      See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

      What the Common Law Right Protects

      Though the second prong of the standard four-step test mentions “name or likeness,” courts held that the common law right is actually much broader: the focus instead is on the term “identity.” See Abdul-Jabbar v. General Motors, 85 F.3d 407, 413-14 (9th Cir. 1996).

      Courts have interpreted “identity” broadly, covering more uses than does the statutory right of publicity. For example, imitating someone’s voice is not a violation of the statute, but it may violate the common law right. See Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A picture of a distinctly-decorated race car can be a common-law violation, even if the driver himself is not visible. Motschenbacher v. R.J. Reynolds Tobacco, 498 F.2d 821, 827 (9th Cir. 1974). A robot can constitute a common-law violation, even if not sufficiently detailed to violate the statute. White v. Samsung, 971 F.2d 1395, 1397-99 (9th Cir. 1992).

      What Constitutes a Violation of the Common Law Right

      Unlike the statute, the common law right is not explicitly limited to commercial uses of a plaintiff’s identity. However, the “less commercial” a use, the more that First Amendment concerns come into play. (See section on First Amendment Limitations below.) Purely commercial speech, such as advertising, does nothing more “than propose a commercial transaction”; if a defendant’s use falls outside the realm of the purely commercial, California’s common law right of publicity is less likely to apply.

      DAMAGES

      A plaintiff can simultaneously pursue claims for violations of both the common law and the statute. Cal. Civ. Code § 3344(g). The statute entitles a victorious plaintiff to the “actual damages suffered,” as well any of the defendant’s profits that “are attributable to the use.” Punitive damages “may” be awarded under the statute; California law limits punitive damages to cases of “oppression, fraud, or malice.” Cal. Civ. Code § 3294. The winning side in a statutory case “shall” receive his/her attorney’s fees and costs.

      Damages are not limited strictly to the financial harm suffered by a plaintiff. Courts may also take into account “injury to peace, happiness, and feelings,” as well as “injury to goodwill, professional standing, and future publicity value.” See Waits v. Frito-Lay, 978 F.2d 1093, 1102-03 (9th Cir. 1992).

      LIMITATIONS ON BOTH THE STATUTORY AND COMMON LAW RIGHTS

      Relationship with Copyright Law

      A right of publicity claim (either statutory or under the common law) fails if it is too similar to a copyright claim; in such a case, the state right-of-publicity law is preempted by federal copyright law. For example, in Laws v. Sony Music, 294 F.Supp.2d 1160 (C.D. Cal. 2003), Sony licensed one of the plaintiff’s songs and sampled it in a new recording. The plaintiff tried to bring a right of publicity claim, but the court ruled that Sony’s use of a licensed recording fell under copyright law, thus preempting the state claim. Generally speaking, if the allegedly-infringing use of a person’s identity primarily involves use of copyrighted work, there is a chance that the state-law claim will be preempted.

      First Amendment Limitations

      The First Amendment also limits the extent to which rights of publicity can limit speech about matters of public interest. As one case put it, “[u]nder the First Amendment, a cause of action for appropriation of another’s name and likeness may not be maintained against expressive works, whether factual or fictional.” Daly v. Viacom, 238 F. Supp. 2d. 1118, 1123 (N.D. Cal. 2002).

      As mentioned above, the California statute contains exceptions for uses related to news, public affairs, sports, and politics. Courts often focus on this statutory safe harbor, instead of the First Amendment directly, when confronting statutory right-of-publicity claims. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 415-17 (Cal. Ct. App. 2001).

      The First Amendment is more often directly relevant in common law right of publicity cases, since there is no statutory safe harbor. But since cases often involve both common law and statutory claims, the First Amendment analyses often cover both the statute and the common law. For example, in Daly v. Viacom, the court ruled that use of the plaintiff’s likeness in advertisements for a television show, using footage from the show in which the plaintiff appeared, was protected as part of an expressive work. That case involved both common law and statutory claims.

      The 9th Circuit has suggested that cases involving "noncommercial" uses (meaning, the use contains some expression and does not "simply advance a commercial message") receive heightened First Amendment scrutiny. If the plaintiff is a public figure, he/she "can recover damages for noncommercial speech from a media organization . . . only by proving 'actual malice' " in so far as the noncommercial use was "intended to create [a] false impression in the minds of [the] readers." Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186-87 (9th Cir. 2001). The full extent of the "actual malice" standard's applicability in right of publicity cases remains unclear, however.

      Statute of Limitations

      Both the statutory and common law right of publicity claims are subject to a two-year statute of limitations. Christoff v. Nestle USA, Inc., 213 P.3d 132, 135 (Cal. 2009). The Ninth Circuit has held that, for material appearing on a website, the statute is not retriggered every time aspects of the website are amended or revised; rather, the statute is only retriggered if "the statement itself is substantively altered or added to, or the website is directed to a new audience." Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012).

      Jurisdiction: 

      Subject Area: 

      District of Columbia Right of Publicity Law

      This page covers legal information specific to the District of Columbia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Washington D.C. courts recognize a common law claim for misappropriation of another's name or likeness. D.C. courts do not distinguish between right of publicity and misappropriation but merge the two under a claim for misappropriation. D.C. has no corresponding statute.

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      Washington D.C. has adopted the Restatement (Second) of Torts § 652C for a claim of misappropriation/right of publicity, which provides that "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

      The required elements for a misappropriation claim are:

      1. An unauthorized use of the plaintiff's identity or persona, that is
      2. For the use or benefit of the defendant.

      Evidence that the defendant profited from the unauthorized use of the plaintiff's name or likeness is insufficient to prove liability in a misappropriation action. Instead, the plaintiff must prove not only that the defendant derived a benefit from the plaintiff's identify but also that there is a public interest or other value in that name or likeness. If there is no recognizable value associated with the name or likeness of the plaintiff, a misappropriation claim will fail. In Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985), a plastic surgeon displayed "before and after" photographs of a patient's face. While the photos were on display for the public, the court held that a claim for misappropriation failed because the patient's identity was not revealed and because the patient did not prove that there was public interest or other value in her face or likeness.

      However, a misappropriation claim may succeed even if the plaintiff's name or likeness does not have specific commercial value, if it nevertheless has some other kind of "value" that the defendant has turned to his own benefits and purposes. Tripp v. United States, 257 F. Supp. 2d 37, 43 (D.D.C. 2003) (finding that plaintiff's notoreity might have "value" for certain purposes).

      In Polsby v. Spruill, 1997 U.S. Dist. LEXIS 11621 (D.D.C. Aug. 1, 1997), the plaintiff claimed that an author had based a main character in his novel on the plaintiff's life. The court ruled that the plaintiff had failed to meet her burden of proof because she had presented no evidence that the defendant knew her or knew about her prior to outlining his novel and because there were more differences than similarities between the plaintiff's life and the novel's main character's life.

      Damages

      In D.C., there are no cases interpreting damages for a misappropriation claim. If D.C. considers a misappropriation claim to be based on a privacy interest, damages may resemble those awarded for public disclosure of private facts. These may include general damages, special damages, or punitive damages.

      General damages may be available to a plaintiff who has suffered emotional distress or personal humiliation if his private life is given publicity. Vassialiades, 492 A.2d at 594. Such damages are available only if such distress or humiliation would normally occur after an invasion on that individual's privacy. The harm also has to be of a normal and reasonable extent.

      Special damages for a claim of invasion of privacy may include harm to a plaintiff's commercial interests. In Black v. United States, 389 F. Supp. 529, 538 (D.D.C. 1975), the plaintiff successfully recovered special damages on a publication of private facts claim after the FBI electronically eavesdropped and passed information to the Department of Justice.

      Punitive damages are meant to punish for an invasion of privacy when a person's conduct is "malicious, wanton, reckless, or in willful disregard for another's rights." Vassialiades, 492 A.2d at 593. Courts are reluctant to award punitive damages; a high burden is placed on the plaintiff to show that punitive damages are supported by "evidence of record and the law." Id. at 593.

      Limitations and Defenses

      There are two First Amendment defenses that the D.C. courts recognize to a misappropriation claim: the newsworthiness privilege and the incidental use privilege.

      The newsworthiness privilege applies to "advertisements for books, films, and other publications concerning matters of public interest." Lane v. Random House, 985 F. Supp 141, 146 (D.D.C. 1995). If a person's identity or likeness has "no real relationship" to the publication at issue, the newsworthiness privilege will fail.

      The incidental use privilege protects against liability when an individual's name or likeness is used in connection with that person's public activities. Under this privilege, a person's likeness "is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities." Lane, 985 F. Supp at 147 (quoting Restatement (Second) of Torts § 652C, comment d (1977)). Further, incidental use "for a purpose other than taking advantage of a person's reputation or the value associated with his name will not result in actionable appropriation." Vassiliades, 492 A.2d at 592. In Klein v. McGraw-Hill, 263 F. Supp. 919 (D.D.C. 1966). the plaintiff became a public figure by making advances in the field of photography; the defendant publisher used the plaintiff's name and photograph in a book sold for profit. The court held that such use was incidental in light of the plaintiff's public activities.

      Statute of Limitations

      Under D.C. Code § 12-301, there is no specific statute of limitations for a misappropriation claim. The general statute of limitations is 3 years. D.C. Code § 12-301(8). If misappropriation is asserted in connection with another claim based on the same facts for which there is a prescribed statute of limitations, the court will likely apply that statute of limitations to the misappropriation claim. Mittleman v. United States, 104 F.3d 410 (D.C. Cir. 1997).

      Jurisdiction: 

      Subject Area: 

      Florida Right of Publicity Law

      This page covers legal information specific to the State of Florida. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Generally speaking, the right of publicity in Florida protects against unauthorized uses of a person's name or likeness for commercial purposes. Florida has two systems of rights of publicity: a statute, and a common law right.

      Florida codifies its statutory right of publicity, treated primarily as a property right, at Section 540.08, with which you should familiarize yourself. Florida also recognizes a common law right of publicity under a right of privacy.

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Florida's statutory right of publicity creates a property right held by an individual in his or her name and likeness. See Loft v. Fuller, 408 So.2d 619 (Fla. Dist. Ct. App. 1981). Florida's statute, Fla. Stat. Ann. § 540.08, protects a person's:

      • name
      • portrait
      • photograph, and
      • likeness.

      The term "photograph" includes still or moving pictures or reproductions of an individual. See Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); see also Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Badillo v. Playboy Entm't Group, Inc., 2006 WL 785707 (M.D. Fla. Mar. 28, 2006). The individual must be identifiable in the photograph, and not merely a member of the public who is unnamed and not otherwise identified in connection with the use of the photograph. Fla. Stat. Ann. § 540.08(4)(c).

      This statute and its interpretations by Florida courts have not formally recognized the protection of an individual's voice, though it is possible that "likeness" would include this. See Neva, Inc. v. Christian Duplications Int'l, Inc.,  743 F. Supp. 1533 (M.D. Fla. 1990) (suggesting that an actor's voice in a recording might be within the scope of § 540.08).

      What Constitutes a Statutory Violation

      Florida's statute protects against unauthorized commercial uses of an individual's name or likeness. Specifically, the statute provides that,

      "No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent."

      Fla. Stat. Ann. § 540.08(1).

      In Tyne v. Time Warner Entertainment Co., the Florida Supreme Court held that to find a violation of the right of publicity statute, the use must be for the defendant's benefit and done to promote a product or service, not merely for expressive purposes. See Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983). 

      Simply using a person's likeness in connection with a commercial product or service does not violate the statute. Rather, the statute is designed to "prevent the unauthorized use of a name to directly promote the product or service of the publisher." Tyne v. Time Warner Entm't Co., L.P., 901 So.2d 802 (Fla. 2005); see also Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). Inclusion in a product sold for profit is insufficient to constitute an unauthorized use under this statute, as there must be a demonstration the association of the name with the product is valuable and exploitative. See Valentine v. C.B.S., Inc., 698 F.2d 430 (11th Cir. 1983); Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 1255 (S.D. Fla. 2010); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). The publication or printing of a product for advertising purposes has been found sufficient to constitute a statutory violation, even when there was no distribution. Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 2004).

      Florida's statute also contains exceptions for news media and prior consent, including:

      • news media including newspapers, magazines, books, broadcasts, news reports, or presentations having a legitimate public interest and the use is not for advertising purposes, and
      • publications connected with the resale or other distribution of literary, musical, or artistic productions or other property where the person has consented to the use of their likeness with the initial sale or distribution.

      Fla. Stat. Ann. § 540.08(4).

      Florida has also recognized Section 47 of the Restatement (Third) of Unfair Competition, finding exceptions for uses including "news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352 (N.D. Fla. 2010); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005).

      Rights of the Deceased

      Florida provides that this right of publicity lasts for 40 years after the death of the individual, and is considered a freely transferable, licensable, descendible property right. The substance of the right is the same before and after death.

      Any person, firm or corporation may be authorized in writing to license the commercial use of an individual's name or likeness. Fla. Stat. Ann. § 540.08(1). If no such entity is authorized in writing, then the right belongs to the individual's surviving spouse and children. Fla. Stat. Ann. § 540.08(1). An individual's spouse is determined by the domicile's law the time of the individual's death, regardless of the spouse's later remarriage. Children includes immediate offspring as well children legally adopted by the individual. Fla. Stat. Ann. § 540.08(6).

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      In Florida, the common law right of publicity, including the right not to have a person's name published without his or her consent, was first recognized as part of a right of privacy. See Cason v. Baskin, 20 So. 2d 243 (Fla. 1944); see also Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

      The common law right of publicity extends to any individual whose name or likeness has been exploited through unauthorized use during his or her lifetime. See Gridiron.com v. National Football League Player's Ass'n, 106 F. Supp. 2d 1309 (S.D. Fla. 2000); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). The common law right is meant to protect the privacy and integrity of an individual's name and likeness, because "Nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it." Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

      Like the statutory right, the common law right of publicity recognizes exceptions for news reporting and for authorized publishers and distributors of a work to use an individual's name to truthfully identify the work's creator. See Zim v. Western Publishing Co., 573 F.2d 1318 (5th Cir. 1978); Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955). 

      What Constitutes a Violation of the Common Law Right

      As with the statutory right of publicity, a violation of the common law right of publicity is found when an individual's name or likeness is used without his or her consent for the benefit its value would confer on the defendant. See Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996); see also Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994).

      DAMAGES

      As the right of publicity has been formally recognized by statute in Florida, decisions generally cite the statutory right over the common law right. See Facchina v. Mutual Benefits Corp., 735 So. 2d 499 (Fla. 4th Dist. Ct. App. 1999). However, the statutory right does not displace common law rights, so a plaintiff can simultaneously pursue claims under both the statute and common law. See Fla. Stat. Ann. § 540.08(6).

      Under the common law right of publicity, a plaintiff may be awarded nominal damages for the unauthorized use of his or her name without proving actual harm or damage. See Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir.1978); see also Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

      Under Florida's right of publicity statute, a plaintiff may bring an action for an injunction and to recover damages to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." Fla. Stat. Ann. § 540.08(2). A victorious plaintiff may receive prejudment interest on the damages awarded. See Bosem v. Musa Holdings, 46 So. 3d 42 (Fla. 2010).

      LIMITATIONS AND DEFENSES

      Both the common law and statutory rights of publicity recognize consent as a defense when the individual consents to the use of his or her name or likeness. See v. Anheuser Busch, Inc., 348 F. App'x 547 (11th Cir. 2009); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

      In addition, all right of publicity claims are limited by the First Amendment. See Valentine v. CBS, Inc. 698 F.2d 430 (11th Cir. 1983); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). As discussed above, the statutory right of publicity includes a safe harbor for press coverage of legitimate public interest at § 540.08(4) and the common law recognizes similar protection of news reporters. See Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955).

      The common law and statutory rights of publicity are subject to a four-year statute of limitations under Florida's general statute for claims whose limitations period is not specifically enumerated in other statutes. Fla. Stat. Ann. § 95.11.

      Jurisdiction: 

      Subject Area: 

      Georgia Right of Publicity

      This page covers legal information specific to the State of Georgia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Georgia's courts have developed a common law right of publicity. The state has no corresponding statute. Various court decisions refer to the "right of publicity," "misappropriation of likeness," and similar terms. The Supreme Court of Georgia's 1982 decision in Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc. is a good place to begin; you should familiarize yourself with that case.

      What is protected?

      Georgia's right of publicity protects a person's name and likeness. A few relevant appellate court decisions help contextualize "name and likeness." In King v. Heritage Products, the Georgia Supreme Court held:

      [T]he appropriation of another's name and likeness, whether such likeness be a photograph or sculpture, without consent and for financial gain of the appropriator is a tort in Georgia.

      King, 296 S.E. 2d 697, 703 (citations removed). In King, the defendants were producing and selling plastic busts of Dr. Martin Luther King, Jr., without the consent of Dr. King's estate. The Georgia Supreme Court held that conduct was a violation of Dr. King's right of publicity, which could be enforced by his estate.

      In an earlier case, Cabaniss v. Hipsley, 151 S.E. 2d 496 (Ga. Ct. App. 1966), the Georgia Court of Appeals recognized the right of publicity as a part of the more general right to privacy. The Cabaniss court ruled that the unauthorized use of the plaintiff's photograph in an advertisement for the Atlanta Playboy Club violated the plaintiff's right of publicity, even if the photograph was published by mistake.

      Most right of publicity cases in Georgia have involved photographs (as in Cabaniss) or obvious likenesses (as in the King busts). But as a common law doctrine, Georgia's right of publicity is not necessarily limited strictly to these categories. The state's courts could continue to expand the meaning of "name and likeness" in subsequent cases. In 2009, the U.S. Court of Appeals for the Eleventh Circuit (the federal judicial circuit in which Georgia is located) cited California's right of publicity law with approval in Toffoloni v. LFP Publishing, 572 F. 3d 1201, 1208 n.2 (11th Cir. 2009), so other states' right of publicity doctrine might be persuasive in Georgia courts.

      Right of deceased persons

      In King, the Georgia Supreme Court held that the right of publicity survives death, can be enforced by the deceased's estate, and is fully inheritable and devisable. The court did not specify the duration of the posthumous right of publicity, and to date no other court decision has dealt with the question of when (or if) the right expires.

      What constitutes a violation?

      Georgia's right of publicity protects against unauthorized uses of a person's identity "for financial gain." The King defendant's sale of plastic busts was considered commercial, as was the advertising use in Cabaniss. In Alonso v. Parfet, the Georgia Supreme Court further ruled that use of a person's name on "various forms and documents" used in the course of business could establish a violation. 325 S.E. 2d 152 (Ga. 1985).

      But Georgia's right of publicity is limited by "newsworthiness." In the 1956 case Waters v. Fleetwood, the Georgia Supreme Court stated that

      where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy.

      91 S.E. 2d 344, 348. Though Waters focuses on the "right of privacy," courts have used the newsworthiness test in right of publicity cases. In Toffoloni, the Eleventh Circuit summarized the test as follows:

      [W]here a publisher may be precluded by the right of publicity from publishing one's image for purely financial gain, as in an advertisement, where the publication is newsworthy, the right of publicity gives way to freedom of the press.

      There is no clear test for determining what qualifies as "a matter of public interest," but with respect to this question the Eleventh Circuit has pointed to California case law as instructive, ruling that the use of the plaintiff's identity must be actually related to the incident or issue with which the public is concerned. Therefore, the Toffoloni defendants were held liable for publishing previously-taken nude photographs of a recent murder victim; the Eleventh Circuit ruled that the photographs "were in no conceivable way related" to the newsworthy event (the murder). In contrast, the Waters defendants were protected from liability when they published photographs of a murder victim's corpse, because those photographs were related to the matter of public interest. Therefore there must be some kind of reasonable connection between the newsworthy event and the use.

      Remedies

      Money damages are limited to "the value of the use of the appropriated publicity." Toffoloni, at 1206. Georgia treats the right of publicity as a "proprietary" right, meaning general damages for claims such as emotional distress are not available. (Other privacy-related torts, if applicable, might allow for collection of general damages.)

      Injunctive relief is available to plaintiffs. Punitive damages may also be available, if there is evidence of "wrongdoing, fault, wrongful motive or state of mind" on the defendant's part. Cabaniss, at 508.

      Statute of limitations

      Georgia's right of publicity claim is subject to a two-year statute of limitations for personal injury claims. Rivell v. Private Health Care Sys., Inc., 887 F. Supp. 2d 1277, 1284 (S.D. Ga. 2012) (citing O.C.G. § 9-3-33).

      Jurisdiction: 

      Subject Area: 

      Illinois Right of Publicity Law

      This page covers legal information specific to the State of Illinois. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Illinois' right of publicity statute, the Right of Publicity Act, is codified at 765 ILCS 1075. You should familiarize yourself with the statute, especially sections 5 (which defines the key terms of the statute) and 35 (which lists the primary exceptions to the right of publicity). Illinois no longer recognizes a distinct common law right of publicity.

      What is protected?

      The Right of Publicity Act, at § 30, protects "an individual's identity."

      Section 5 defines the key terms. An "individual" is defined as a "natural person," meaning that the Right of Publicity act does not protect the names of businesses or other legal entities.

      The statute defines "identity" broadly:

      "Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.

      At least one federal district court has noted that the Act's definition of "identity" is broad and promotes "an expansive approach" when deciding what counts as identity. Muzikowski v. Paramount Pictures Corp, 2003 WL 22872117, at *6 (N.D. Ill., Dec. 3, 2003) (not reported). While there does not appear to be appellate case law on the subject, the statute's definition of "identity" suggests a two-step approach:

      1. Did the defendant use an "attribute" of the plaintiff? 
      2. Would that attribute "identify" the plaintiff to an ordinary, reasonable person?

      Section 5 of the Act also defines "name," one of the listed attributes that can constitute "identity." The statute protects an individual's "actual name," as well as any "other name by which an individual is known that is intended to identify that individual." This would appear to provide protection to assumed names, stage names, and the like, as long as the individual is sufficiently "known" by that name.

      Rights of deceased persons

      Section 30(b) of the Right of Publicity Act protects an individual's identity for 50 years after death, if the person died after the date the statute went into effect. The Right of Publicity Act went into effect on January 1, 1999. Illinois' earlier common law right of publicity did not provide protection after death. Carlson v. Del Pub. Co., 213 N.E. 2d 39 (Ill. App. Ct. 1965). Therefore, the identities of people who died before 1999 are unprotected in Illinois.

      What constitutes a violation?

      The Right of Publicity Act protects against unauthorized "commercial" uses of an individual's identity. Section 5 defines use for a "commercial purpose" as a "public use" for the purpose of: (i) offering the sale of products, services, etc. (ii) advertising or promoting products, services, etc.; or (iii) fundraising.

      Use of a person's identity in private documents, even if used for a commercial purpose, is not "public" and is not a violation of the Act. See MetLife v. Seldman, 734 F. Supp. 2d 304, 311-12 (E.D.N.Y. 2010).

      Most of what qualifies as a "commercial" use is intuitive. Using a person's picture on product packaging, Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D.Ill. 2004), and using a person's image to falsely imply endorsement of a product, Trudeau v. Lanoue, 2006 WL 516579 (N.D. Ill. March 2, 2006) (not reported) have both been found to be "commercial." If the use is tied to advertising, it risks right-of-publicity liability.

      One federal district court has noted the differences between protection for commercial and non-commercial speech under the First Amendment, in connection with the question of whether First Amendment protection for non-commercial speech would trump the Right of Publicity Act.  Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill. February 15, 2012). It is not clear from the decision, however, whether the judge connected the statutory definition of commercial use under the Right of Publicity Act to the constitutional concept of commercial speech.

      Exceptions and the First Amendment

      The Right of Publicity Act contains a number of specified exceptions designed to protect First Amendment interests. Specifically, § 35(b) lists five exceptions:

      1. Using a person's identity to portray that person in a work of art (such as a painting, play, movie, song, etc.) is protected, as long as the work of art is not "in and of itself a commercial advertisement."
      2. Uses for non-commercial purposes are exempt. This exception includes news reports, sports, public affairs, and political campaigns.
      3. The statute allows use of an author's name in connection with her work (but only if the use is truthful).
      4. Advertisements for any of the above exceptions are also exempt. Therefore, even though an advertisement is "commercial," if it is advertising an exempted use (such as a billboard for a protected film) there is no violation of the right of publicity.
      5. There is also an exception for professional photographers, to allow them to display their work at their place of business.

      Courts have described these various exceptions as important protections for First Amendment rights. See, e.g., Collier v. Murphy, 2003 WL 1606637 (N.D. Ill. March 26, 2003) (not reported). However, these exceptions do not define the limit of First Amendment protection; conduct that falls outside of the statutory exceptions may still be constitutionally protected. In Christianson v. Henry Holt and Co., 2007 WL 2680822 (C.D. Ill. June 29, 2007) (not reported), the defendants used a picture of the plaintiff on a book jacket, even though the plaintiff was not a subject of the book. The district court ruled that the defendants' conduct did not fall under the first or second exceptions listed above, because the plaintiff was not portrayed, or even mentioned, in the book. But the court then stated that "the fact that Plaintiff's claim does not fit within one of the elucidated exception[s] to the [Right of Publicity Act] does not end the inquiry," and went on to consider whether the use of the plaintiff's image was protected by the First Amendment as an expressive choice in the context of the book. Although the court eventually ruled against the defendants on this issue, finding no link between the subject of the book and the plaintiff's picture, the court's analysis indicates that a separate First Amendment defense may exist for some expressive uses of an individual's image.

      Remedies

      Section 40 of the Act provides from monetary relief. A victorious plaintiff can collect both their actual damages and the defendant's profits that result from the violation. The minimum monetary award is $1,000. A plaintiff can claim both "personal" damages and "commercial" damages. See Villalovos v. Sundance Associates, 31 Media L. Rep. 1274, 2003 WL 115243, at *5 (N.D. Ill. January 13, 2003). Punitive damages are also available for willful violations.

      Section 50 allows courts to issue "appropriate" injunctive relief. The court can also, in its discretion, award the winning side attorney's fees and court costs. See § 55.

      Statute of limitations

      Right of publicity claims under the Illinois statute are subject to a one-year statute of limitations. Blair v. Nevada Landing P'ship, 859 N.E.2d 1188, 1192 (Ill. App. 2d Dist. 2006).

      Jurisdiction: 

      Subject Area: 

      Indiana Right of Publicity Law

      This page covers legal information specific to the State of Indiana. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Indiana has two systems of right of publicity law: a statutory right protecting a property interest, and a common law privacy right.

      Indiana codifies its statutory right of publicity in Ind. Code § 32-36-1. You should first familiarize yourself with the statute.

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Indiana’s statutory right of publicity is found under Indiana Code Title 32, Section 36-1. The statute defines “right of publicity” as a property interest belonging to a “personality.” Under the Indiana statute, a “personality” is a living or deceased natural person (not a corporation or other legal entity) who possesses specific qualities with commercial value.  Specifically, the statute protects a personality’s:

      • name,
      • voice,
      • signature,
      • photograph,
      • image,
      • likeness,
      • distinctive appearance,
      • gestures, and
      • mannerisms.

      Ind. Code § 32-36-1-6. 

      Indiana’s right of publicity statute protects against the use of these protected aspects “for a commercial purpose” during the  personality’s lifetime and after death. The right of publicity lasts for 100 years after the death of the individual and applies to those who died before the statute’s enactment in 1994. 

      The statute defines “commercial purpose” as the use of an aspect of a personality’s right of publicity in any of the following ways:

      • on or in connection with a product, merchandise, goods, services, or commercial activities.
      • for advertising or soliciting purchases of products, merchandise, goods, services, or for promoting commercial activities.
      • for the purpose of fundraising.

      Ind. Code § 32-36-1-2. 

      The term “name” means “the actual or assumed name of a living or deceased natural person that is intended to identify the person.” Ind. Code § 32-36-1-3. As a result, the statute would apply to performers’ stage names as well as their birth names.

      Who Can Exercise the Statutory Right of Publicity? 

      As property rights, a personality’s rights of publicity recognized under Indiana’s statute are freely transferable and descendible, in whole or in part, by:

      • contract,
      • license,
      • gift,
      • trust,
      • testamentary document, or
      • operation of the applicable state laws of intestate succession.

      Ind. Code § 32-36-1-16. If, after death, a personality’s rights have not been transferred by one of the above means and he or she has no survivors, any rights that have not been vested are terminated. A personality or a person to whom the recognized rights of a personality have been transferred may bring action under the statute. Ind. Code § 32-36-1-17.

      What Constitutes a Statutory Violation?

      The statute only applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship.” Ind. Code § 32-36-1-1. A claim for a violation can be asserted only if the alleged act or event of violation occurred after June 30, 1994. A person, partnership, firm, corporation or an unincorporated association violates Indiana’s right of publicity statute when it:

      • without written consent, uses an aspect of a personality’s right of publicity for a commercial purpose in Indiana;
      • creates or causes the creation in Indiana of goods, merchandise, or other materials prohibited under the statute;
      • transports or causes to be transported into Indiana goods, merchandise, or other materials created or used in violation of the statute; or
      • knowingly causes advertising or promotional material created or used in violation of the statute to be published, distributed, exhibited, or disseminated within Indiana.

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      Indiana common law recognizes an invasion of privacy claim for misappropriation of an individual’s name or likeness, with the Indiana Supreme Court noting that the tort focuses on an individual’s right to be left alone. Doe v. Methodist Hospital, 690 N.E.2d 681, 684 (Ind. 1997). A person’s name or likeness “embraces the concept of a person's character, which is legally protected against appropriation by another for his own use or benefit.” Felsher v. University of Evansville, 755 N.E.2d 589, 601 (Ind. 2001). For these reasons, a person can likely assert the common law right without evidence that their name, etc., has any particular commercial value.

      In Doe, the Court defined the tort of invasion of privacy as the “unwarranted appropriation or exploitation of one's personality . . . in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilit[ies].” Doe, 690 N.E.2d at 685–6. 

      Although “an appropriation claim involves a privacy issue in the nature of a property right,” because the tort protects a right of privacy, this cause of action cannot be brought by a corporation. Felsher, 755 N.E.2d at 593–4. 

      What Constitutes a Violation of the Common Law Right?

      Indiana courts have adopted the elements for misappropriation from the Restatement (Second) of Torts. Therefore, “an appropriation and use of a plaintiff’s name or likeness occurs whenever the defendant ‘makes use of the plaintiff's name or likeness for his own purposes or benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.’” Felsher v. University of Evansville, 727 N.E.2d 783 (Ind. Ct. App. 2000) (rev’d on other grounds) (quoting Restatement (Second) of Torts § 652I cmt. B (1977)).

      In Felsher, the Indiana Supreme Court found that a professor had misappropriated the names and likenesses of the University of Evansville and university employees when he created websites and email addresses containing the plaintiffs’ names and used them “for the sole purpose of harming the [plaintiffs’] reputation[s].” 755 N.E.2d at 597. The Court held that the misappropriation was for the professor’s benefit because it “enabled him to pursue a personal vendetta.” Id. at 600. The Indiana Appeals Court has also noted that the unauthorized use of photographs of a person for commercial purposes is generally actionable as an invasion of privacy. Continental Optical Co v. Reed, 86 N.E.2d 306 (Ind. Ct. App. 1949).

      DAMAGES

      Statutory

      For claims brought under Indiana’s statutory right of publicity, the statute provides for the following remedies, with some exceptions for news and entertainment media:

      • actual damages that include profits stemming from the unauthorized use or $1,000, whichever is greater;
      • treble or punitive damages for knowing, willful or intentional violations;
      • reasonable attorney’s fees, costs and expenses;
      • temporary or permanent injunctive relief; and
      • impoundment, destruction or other disposition of violating goods or items from which violating goods could be reproduced or manufactured. 

      Indiana’s statute explicitly states that the above remedies are supplemental to any other remedies provided by law. Ind. Code § 32-36-1-20.

      Common Law

      Under Indiana law, damages for an invasion of privacy claim can include, but are not confined to, “compensation for the embarrassment, humiliation and mental pain [that] a person of ordinary sensibilities would have suffered under the circumstances.” Continental Optical, 86 N.E.2d at 309. Indiana law also allows for special damages that naturally flow from the tort as well as injunctive relief. Id. at 309–10; Felsher, 755 N.E.2d at 599–601.

      LIMITATIONS AND DEFENSES

      Statutory

      Indiana’s right of publicity statute explicitly states that it “does not affect rights and privileges recognized under any other law that apply to a news reporting or an entertainment medium,” such as free speech privileges. The statute further states that its use prohibitions do not apply to uses in any of the following:

      • literary works, theatrical works, musical compositions, film, radio, or television programs.
      • material that has political or newsworthy value;
      • original works of fine art;
      • advertisements for a news reporting or an entertainment medium that uses at least part of the medium’s own past edition and does not suggest that a personality endorses that medium; or
      • advertisements for the above uses.

      The statute also does not apply to the use of:

      • a personality’s name to truthfully identify that personality as an author or performer in a rightfully reproduced, exhibited or broadcast work;
      • a protected aspect as related to public interest; or
      • a protected aspect if that aspect has commercial value only because of the personality’s criminal charge or conviction.

      Ind. Code § 32-36-1-1.

      Common Law

      In Time, Inc. v. Sand Creek Partners, L.P., a federal district court stated that “[i]n general, when a person's picture is used to illustrate a non-commercial, newsworthy article, his interest in the use of his likeness or image must be evaluated in light of constitutional interests found in the First Amendment.” 825 F. Supp. 210, 212 (S.D. Ind. 1993). In Time, after broadly construing “newsworthiness,” the court held that the photographs of two widely known celebrities on their wedding way illustrated a newsworthy event of widespread public interest; therefore, the newsworthiness that the images depicted outweighed any privacy rights of the celebrities. Id. at 212–13.

      The Indiana Appeals Court recognized that the right of privacy can be waived. Continental Optical, 86 N.E.2d at 309. In Continental Optical, the court noted that the right is waived by consent, either express or implied, and may also be relinquished by an individual who “enters a business or calling which gives the public a legitimate interest in his character, activities and affairs.” Id.

      STATUTE OF LIMITATIONS

      A common law claim for misappropriation is subject to a two-year statute of limitations. Ind. Code § 34-11-2-4 (stating that an action for injury to person or character must be brought within two years); Johnson v. Blackwell, 885 N.E.2d 25 (Ind. Ct. App. 2008) (applying a two-year statute of limitations to an invasion of privacy claim). A two-year statute of limitations would also likely apply to statutory right of publicity claims. Ind. Code § 34-11-2-4 (stating that an action for injury to personal property must be brought within two years).

      Jurisdiction: 

      Subject Area: 

      Massachusetts Right of Publicity Law

      This page covers legal information specific to the State of Massachusetts. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Massachusetts codifies its Right of Publicity law at Chapter 214, § 3A of the General Laws. You should first familiarize yourself with that statute. Massachusetts does not recognize a separate common law right of publicity.

      What is protected?

      Section 3A protects a person's "name, portrait or picture". There is a paucity of cases specifying the precise limits of this phrase; in other contexts, however, courts have acknowledged that the Massachusetts statute is very similar to New York's. See, e.g., Old Colony Donuts, Inc. v. American Broadcasting Companies, Inc., 368 F. Supp. 785, 788-89 (D. Mass. 1974). Thus, New York cases interpreting these terms may be persuasive to Massachusetts courts.

      Rights of deceased persons

      Massachusetts has no appellate case law on this point. However, at least one Massachusetts trial court has ruled that the right of publicity only applies to living persons. Hanna v. Ken's Foods, Inc., 2007 WL 1695311, at *1 n. 4 (Mass. App. Ct., June 12, 2007) (unpublished opinion) (noting that the trial court dismissed plaintiff's § 3A claim on living-persons ground that plaintiff was not a living person, and that the issue was not appealed).

      What constitutes a violation?

      To violate § 3A, a use of a person's identity must be:

      • within Massachusetts; 
      • for advertising or trade purposes; and 
      • without written consent.

      The statute focuses on a person's "interest in not having the commercial value of one's name, portrait or picture appropriated for the benefit of another." Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749 (1980). Thus, courts applying § 3A look to whether the defendant's actions exploited the value of the plaintiff's identity.

      Section 3A contains some specific exceptions. One gives added protection to professional photographers: photographers may exhibit their photographs at their "establishment," until the subject of the photograph provides written notice. If the photographer continues to display the subject's photograph after receiving such notice, the photographer may be liable for violating § 3A. Other statutory exceptions include the right to use an author's name in connection with her work, and the right to use a person's identity to sell goods, if that person uses her identity in connection with the manufacture or distribution of those goods.

      In practice, the primary limit on the right of publicity is known as "incidental use." If the defendant's use of a person's identity is only incidental to other purposes, and not intended to profit off of the person's "reputation, prestige, or other value," there is no violation of § 3A. Id. In Tropeano, the seminal Massachusetts Supreme Judicial Court case establishing the "incidental use" standard, the defendant magazine used a picture of several people (including the plaintiff) to illustrate a news story. The story was not an advertisement of any kind, and there was no evidence that the defendants intended to profit from the plaintiff's identity (notably, the plaintiff was not identified in the photograph). Thus, the use of the plaintiff's photo was "incidental," regardless of the magazine's profit-seeking motive.

      A number of trial courts, both state and federal, have used Tropeano's incidental use test to dismiss claims that arise from various news stories and other non-advertising purposes. See, e.g., Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004), aff'd sub nom., Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005) (dismissing § 3A claim arising from photo & caption in book); Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass. 1985) (dismissing § 3A claim arising from photo in news magazine).

      In deciding how broadly to construe the "advertising or trade" language, Massachusetts courts have been skeptical of analogies to New York case law. Massachusetts's statute does not apply to "peace of mind"-type privacy harms; the focus is strictly on the commercial value of a person's identity, and whether the defendant has appropriated that value. This is arguably distinct from New York's statute, which is codified under a broader "right of privacy." Tropeano, 379 Mass. at 748-49. Thus, while (as mentioned above) New York cases may be persuasive to Massachusetts courts in some circumstances (such as defining "name, portrait or picture"), New York analogies for interpreting "advertising or trade" may be less useful.

      Damages

      Section 3A provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. If a plaintiff is able to show the necessary commercial use of her identity (see above), the damage award may include compensation for "mental distress." See Polich v. Rafferty, 1997 WL 89152, at *10 (Mass. Super. Ct., February 10, 1997) (unreported).

      Section 3A also states that if the defendant "knowingly" used the plaintiff's protected identity, the trial court has discretion to award treble damages.

      Statute of limitations

      Right of publicity claims in Massachusetts are subject to a three-year statute of limitations. Mass. Gen. Laws c. 260, § 2A.

      Jurisdiction: 

      Subject Area: 

      Michigan Right of Publicity Law

      This page covers legal information specific to the State of Michigan. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Although no state appellate court in Michigan has yet explicitly recognized a common law right of publicity, the U.S. Court of Appeals for the Sixth Circuit has opined that such a right would be recognized under Michigan law. In addition, Michigan's state appellate courts have recognized comparable protection in the nature of a property right under its "appropriation" tort. The state has no corresponding statute.

      Publications and political organizations concerned about infringing on a plaintiff's right of publicity should note that state appellate courts have interpreted the First Amendment to protect a broad range of speech from appropriation claims. For more detail, consult the First Amendment section below.

      What is protected?

      The Sixth Circuit has suggested that Michigan would recognize a right of publicity to protect a person's ‘identity' in addition to their name and likeness. It would therefore be possible to violate Michigan's common law right of publicity without employing a person's photo or name. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the U.S. Court of Appeals for the Sixth Circuit held that the use of an identifying catchphrase ("Here's Johnny") by a portable toilet company was enough to constitute an appropriation of Johnny Carson's identity under Michigan law. In fact, the court in Carson noted that the use of Johnny Carson's full name, John William Carson, would not have infringed on his right of publicity as it is distinct from his identity as celebrity.

      In Battaglieri v. Mackinac Ctr. for Pub. Policy, 261 Mich. App. 296 (2004), the Court of Appeals of Michigan explained that under Michigan's tort of appropriation, "any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another."

      What constitutes a violation of the common law right of publicity?

      The U.S. Court of Appeals for the Sixth Circuit has suggested that Michigan would use a two part test to determine whether or not a violation of the right of publicity has occurred, in which the plaintiff must demonstrate:

      1. "A pecuniary interest in her identity"
      2. "That her identity has been commercially exploited by a defendant"

      Parks v. LaFace Records, 329 F.3d 437, 460 (6th Cir. 2003). In Parks, civil rights hero Rosa Parks brought suit against the rap group Outkast for using her name in a song title. The court held that her claim passed both prongs of the test, because she had used her name in the past for promotional purposes, and because Outkast used her name to sell records.

      It is unclear how meaningful the requirement of the first prong is. Some cases suggest it may bar a non-celebrity from bringing suit. In Edwards v. Church of God in Christ, No. 220348, 2002 WL 393577 (Mich. App. 2002), the Court of Appeals of Michigan held that "no cognizable tort for negligent misappropriation of an unknown singer's voice exists in Michigan." The scope of this holding is ambiguous, but it at least raises the possibility that a plaintiff's fame may be a pre-requisite to recovery. In Carson, similarly, the Sixth Circuit Court of Appeals focused on Johnny Carson's status as a celebrity, and noted that it was the basis for the pecuniary value of his identity, explaining that "a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."

      On the other hand, the very act of commercial exploitation may be sufficient to prove a plaintiff's pecuniary interest in their identity, meaning that satisfying the second prong of the test satisfies the first. In Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. App. 2009), a model sued a website for publishing her photo and sending it to a magazine without permission. The Court of Appeals of Michigan held that the act of publishing and sending the photo indicated that the model's identity had value, although it also acknowledged that her history as a dancer and model further supported the contention.

      Parks and Carson demonstrate that the second prong does not require the defendant to sell or license the name for profit. Simply attaching the name to a product can constitute commercial exploitation.

      Rights of the Deceased

      The U.S. Court of Appeals for the Sixth Circuit recognizes Michigan's right of publicity as a property right as opposed to a dignitary right, which means that the right survives the death of the person. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 325 (6th Cir. 2001). In Herman Miller, furniture manufacturer Herman Miller partnered with famous design Charles Eames to create a line of distinctive chairs. After Eames died, the Eames estate contractually assigned Eames's right of publicity to Miller. A rival furniture company, Palazzetti, tried to use the Eames name to sell its own version of the chair, claiming that Eames's right of publicity vanished on his death. The court disagreed, and held that the right of publicity still existed even after the designer himself died.

      The decision in Herman Miller cites cases from other jurisdictions noting that the right of publicity is assignable to others. The case does not specify how long the right of publicity extends after death, nor does it appear that subsequent cases in Michigan have addressed this question. One can waive the right of publicity by signing a release. Hauf v. Life Extension Found., 454 Fed. Appx. 425, 431 (6th Cir. 2011).

      First Amendment Defenses

      First Amendment defenses have been historically recognized in Michigan as a limitation on a plaintiff's ability to bring a claim for appropriation or right of publicity. In Pallas v. Crowley, Milner & Co., 33 N.W.2d 911 (Mich. 1948), an early case that does not specifically discuss rights of publicity, the Supreme Court of Michigan held that a model had a cause of action against an advertiser for using her photograph without permission. Significantly, the Pallas opinion noted that the publication was for advertising and not news reporting, suggesting that the latter would not infringe on a right of publicity.

      More recent state appellate cases suggest that a broad array of publications is thus protected from appropriation claims. In Battaglieri, a union leader claimed that a think tank had appropriated his identity by using his name and quote in its fundraising letters. The Court of Appeals of Michigan held that the fundraising letters were protected by the First Amendment because they contained information about public policy, the leader's name was only mentioned in the context of such policy, and the quote itself was made at a press conference. In Bowens v. Aftermath Entm't, No. 250984, 2005 WL 900603 (Mich. App. 2005), a group of city officials sued a group of musicians for publishing footage of a meeting between the two parties, claiming appropriation. The footage, depicting a dispute about the content of a particular live performance, was released as an extra on a popular DVD anthologizing the tour. The Court of Appeals of Michigan held that because the dispute was reported in the media, and because the plaintiffs in their capacity as public officials had a "real relationship" to the dispute, the musicians were protected by the First Amendment. The defendant's commercial interest in the sales of DVD did not prevent them from asserting their rights under the First Amendment. In each case, the opinion is careful to tie the plaintiff's identity to the matter of public interest.

      The U.S. Court of Appeals for the Sixth Circuit similarly recognizes a First Amendment defense to right of publicity claims. In Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001), individuals depicted in a mini-series about the band The Temptations claimed that NBC had infringed on their right of publicity. The court held that "that the use of plaintiffs' fictionalized likenesses in a work protected by the First Amendment and the advertizing incidental to such uses" would be protected from claims for right of publicity.

      However, such defenses are not always successful. In Parks the court explained that "we must conduct another balancing of interests -- Parks' property right in her own name versus the freedom of artistic expression." Ultimately the court held that the song title "Rosa Parks" did not necessarily merit First Amendment protection, as a jury could find that it was too far removed from the content of the song.

      Remedies

      Damages for right of publicity action can go up to a defendant's profits from the use of the name, plus costs. The court can also enjoin the defendant from further use of the name. Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104, 105 (6th Cir. 1987). However, if the plaintiff does not present evidence of financial harm, they may not be able to recover damages, even if they can enjoin the defendant from future use of their identity. Andretti v. Borla Performance Indus., 426 F.3d 824, 831 (6th Cir. 2005).

      A plaintiff cannot receive punitive damages in Michigan unless authorized by statute. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 765 (2004). As there is no Michigan statute addressing a right of publicity or appropriation, punitive damages are not available for such claims.

      Statute of limitations

      Although no Michigan court has addressed the issue given the unsettled nature of the right of publicity in Michigan, it is likely that a right of publicity claim in Michigan would be subject to Michigan's general three-year statute of limitations for personal injury actions. Mich. Comp. Laws 600.5805(10).

      Jurisdiction: 

      Subject Area: 

      New Jersey Right of Publicity Law

      This page covers legal information specific to the State of New Jersey. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      New Jersey's state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory under the state's appropriation tort. The United States District Court for the District of New Jersey has noted that both state and federal courts use the concepts of right of publicity and appropriation "interchangeably" when applying New Jersey's law. Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 761 (D.N.J. 2011). The state has no corresponding statute.

      What constitutes a violation of the common law right of publicity?

      In Faber v. Condecor, Inc., 477 A.2d 1289, 195 N.J. Super. 81 (App.Div. 1984), the Appellate Division of the Superior Court of New Jersey held that the unauthorized use of a family photo to sell picture frames constituted use for trade purposes, and therefore gave rise to an appropriation claim. A recent unpublished opinion by the same court, Jeffries v. Whitney E. Houston Acad. P.T.A., A-1888-08T3, 2009 WL 2136174 (N.J. Super. Ct. App. Div. July 20, 2009), interpreted Faber to require four elements for an appropriation claim:

      1) The defendant appropriated the plaintiff's likeness,
      2) without the plaintiff's consent,
      3) for the defendant's use or benefit, and
      4) damage.

      In general, unauthorized publication of an identity for promotional or commercial purposes constitutes appropriation under New Jersey law. Conversely, publication that does not convey such a commercial benefit is considered "incidental" to the publication and does not qualify as appropriation. In Jeffries, the court held that a parent teacher association's sale of a video of a large student performance was only an incidental use of an individual student's identity. Similarly, in Castro v. NYT Television, 851 A.2d 88, 370 N.J. Super. 282 (App.Div. 2004), the same court held that including footage of a group of hospital patients in a television docudrama did not constitute appropriation. In Castro, a group of patients sued various parties involved in the creation of a television show for commercially appropriating the patient's identities. The show, "Trauma: Life in the E.R.," included footage from interviews with the plaintiffs. The court held that because the footage was not used for "trade purposes," the plaintiffs could not bring the claim. The court noted that the plaintiffs did not "allege... that any videotape footage of them was used for any specific promotional purpose."

      Note that analysis of whether a publication is incidental might also implicate First Amendment considerations (see First Amendment Defenses, below). In Faber, the court explained that a photo accompanying an article in a newspaper would be considered an "Incidental Use of Name or Likeness" and therefore would not give rise to a cause of action. A photo included as an advertisement, however, would not qualify as incidental.

      One may consent to another's use of one's identity for commercial purposes. However, in Faber, the court held that waiver for a particular use of a photo does not constitute waiver for another use. The plaintiffs in Faber had consented to the use of their photo in an instructional guide. The court held that the plaintiffs could still bring a claim against a defendant who used the photo to sell picture frames.

      The fourth element, damage, has rarely been addressed as a requirement for a claim in New Jersey's courts.

      What is protected?

      New Jersey has adopted the Restatement (Second) of Torts, which explains that "one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy."

      It appears that a distinctive voice or performance would be protected. In Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337 (D.N.J. 2000), the United States District Court for the District of New Jersey held that imitating a singer's voice could infringe on his right of publicity under New Jersey common law. In Prima, the widow of a famous singer claimed the use of her late husband's identity in a restaurant commercial constituted an appropriation. The commercial featured a song that her late husband had made famous, sung by a performer who "unmistakably" copied her husband's voice and manner. Similarly, in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), the court held that an Elvis impersonator's show constituted an appropriation, though in that case the show also employed Elvis's name and likeness.

      A plaintiff may be able to recover for appropriation of a fictional identity. In McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit held that an actor would be able to bring a claim under New Jersey law for the appropriation of the identity of his character, depending on the association between the actor and character.

      The United States District Court for the District of New Jersey has said that the right of publicity is "generally" for plaintiffs with public personas. Jarvis v. A & M Records, 827 F. Supp. 282, 298 (D.N.J. 1993). However, a plaintiff need not be a celebrity to successfully claim damages. In Canessa v. J. I. Kislak, Inc., 235 A.2d 62, 97 N.J. Super. 327 (Law Div. 1967), the plaintiff, a veteran with eight children, enlisted the help of real estate agency to help him to find a home for his family. After purchasing a house, the plaintiff allowed a paper to publish a piece on him and his search. The real estate agency subsequently included the article in its promotional materials for its salesmen, which the plaintiff claimed was an unauthorized appropriation. The Law Division of the Superior Court of New Jersey agreed, explaining:

      Entirely apart, however, from the metaphysical niceties, the reality of a case such as we have here is, in the court's opinion, simply this: plaintiffs' names and likenesses belong to them. As such they are property. They are things of value. Defendant has made them so, for it has taken them for its own commercial benefit.

      The United States Court of Appeals for the Third Circuit has held that simply using one's name as "placeholder," such as "John Doe," does not give rise to a claim under New Jersey law by a person who shares that name. Botts v. N.Y. Times Co., 106 Fed. Appx. 109, 110 (3d Cir. 2004).

      Transfer of rights by death or assignment

      In Prima, the United States District Court for the District of New Jersey noted that New Jersey treats the right of publicity as a property right. "As such," the court explained, "it can be assigned for commercial purposes during a person's life, and can descend to the person's estate upon his death." Prima at 346.

      First Amendment Defenses

      Some forms of speech, such political speech or news/entertainment, are protected by the First Amendment. Consider the following examples of protected speech.

      In Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 186 N.J. Super. 335 (App.Div. 1982), a home-buyer claimed that publishing his name, photo, occupation, and information about the home that he had purchased constituted an appropriation. The Appellate Division of the Superior Court of New Jersey noted that the newspaper publishing the information had a "limited privilege" connected to the First Amendment to publish news articles. The court held that because the information about the transaction was already public, and because the paper's "minimally violative" disclosure of the home-buyer's job was "solely incidental to the news aspects of the sale," the plaintiff could not bring an appropriation claim. In its later ruling in Castro, the Appellate Division cited the decision in Bisbee and noted "it is irrelevant whether a videotape is broadcast in connection with a television story about important public events or a subject that provides only entertainment and amusement."

      In G.D. v. Kenny, 15 A.3d 300, 205 N.J. 275 (2011), the New Jersey Supreme Court held that the inclusion of plaintiff's name and image in political paraphernalia was not a commercial use, and therefore a plaintiff could not bring an appropriation claim. In G.D., a political organization and its marketing partner distributed leaflets describing a politician's prior drug conviction. The court held that such campaign materials are "the type of speech that is at the heart of First Amendment," and that the financial interests of the marketing firm did not render the materials commercial.

      For a good example of the limits of the scope of First Amendment defenses to appropriation claims, consider Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986). In Tellado, the United States District Court for the District of New Jersey held that while the First Amendment would protect the publication of a soldier's photo in a book about the Vietnam War, it would not protect the publication of the photo in the marketing materials enclosed within the book. As the court explained, "the defendant's right of free expression is abridged only insofar as it is required to share some of its profits with the individual whose likeness is helping to stimulate those profits." Also consider Presley, in which the court drew an analogy between "creative comment precluding a right of publicity claim" and fair use. In Presley, the court held that the Elvis impersonator's show was mainly an exploitation and not sufficiently "creative" to qualify for protection.

      Damages and other remedies

      Damages are available for appropriation claims under New Jersey law. Faber at 1295. Whether or not one is a celebrity will affect the calculation of damages. Canessa at 350. Calculation of damages for an appropriation claim may be subject to the degree to which the plaintiff retains ownership of the identity. McFarland at 922. Canessa noted that "it seems to us that however little or much plaintiff's likeness and name may be worth, defendant, who has appropriated them for his commercial benefit, should be made to pay for what he has taken, whatever it may be worth." Canessa at 351.

      There are few opinions addressing the question of calculating damages under New Jersey law in appropriation cases. In a recent unpublished opinion, Leibholz v. Hariri, Civ. No. 05-5148 (D.N.J. Apr. 15, 2011), the United States District Court for the District of New Jersey quoted the Restatement (Second) of Torts in its calculation of damages for an appropriation claim. For privacy torts, the court explained, the Restatement looks to:

      (a) the harm to (the plaintiff's) interest in privacy resulting from the invasion; (b) (the plaintiff's) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.

      In Faber, the Appellate Division of the Superior Court of New Jersey held that the plaintiff could claim damages for the "mental anguish" they suffered from the unauthorized publication of a family photo. On the other hand, in McFarland, the United States Court of Appeals for the Third Circuit held that, under its interpretation of New Jersey law, "deprivation of property" and "lost earnings" could be considered under the right of publicity but suggested that psychological harm ought to be associated with an invasion of privacy claim. In this case, the federal court may have been drawing a distinction between right of publicity and appropriation, though again Hart indicates that both federal and state courts treat them "interchangeably."

      New Jersey state courts have also issued injunctive relief for appropriation claims. Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458, 96 N.J. Super. 72, 80 (Ch. Div. 1967). Federal courts interpreting New Jersey law have done the same, including issuing a preliminary injunction. Presley at 1382.

      Statute of limitations

      As a property right, at least one New Jersey court has held that New Jersey's right of publicity claim is subject to the six-year statute of limitations for  invasion of property rights. Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 352 (Law Div. 1967).

      Jurisdiction: 

      Subject Area: 

      New York Right of Publicity Law

      This page covers legal information specific to the State of New York. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      New York has codified its right of publicity as part of its "Right of Privacy" statute, at Article 5 of the N.Y. Civil Rights Law. You should familiarize yourself with Sections 50 and 51, the primary statutory provisions for right of publicity actions. New York does not recognize a separate common law right of publicity.

      Relationship between Sections 50 and 51

      The two sections, 50 and 51, describe similar rights but provide for different enforcement mechanisms. Section 50 makes a right of publicity violation a misdemeanor, while Section 51 provides a private cause of action. Though right of publicity lawsuits in New York often reference both sections, Section 51 is the primary (and more detailed) provision for most purposes.

      What is protected?

      Section 51 provides protection for a person's: 

      • name 
      • portrait 
      • picture, and 
      • voice. 

      Names: The right of publicity statute does not protect corporate or partnership names. Jaggard v. R.H. Macy, 26 N.Y.S. 829 (N.Y. Sup. Ct. 1941). New York courts have long recognized that "there are other remedies" for the unauthorized use of corporate names. Rosenwasser v. Ogoglia, 158 N.Y.S. 56 (N.Y. App. Div. 1916). This lack of protection for trade names has been held to bar a claim under Section 51 for misappropriation of assumed names, like "Dr. Seuss." Geisel v. Poynter Products, Inc., 195 F. Supp. 331, 355-56 (S.D.N.Y. 1968); but see DeClemente v. Columbia Pictures, 860 F. Supp. 30, 53 (E.D.N.Y. 1994) (suggesting that a stage name might be protected if it is "closely and widely identified" with its user).

      Portraits and Pictures: Courts have construed the portrait/picture provisions of the statute somewhat broadly, to include "any recognizable likeness, not just an actual photograph." Burck v. Mars, Inc., 571 F. Supp. 2d 446, 451 (S.D.N.Y. 2008). The statute covers a representation if it "conveys the essence and likeness of an individual," even if the representation is not completely photo-realistic. Onassis v. Christian Dior-New York, 472 N.Y.S. 2d 254, 261 (N.Y. Sup. Ct. 1984). Sculptures, mannequins, and other three-dimensional "likenesses" may be covered. Young v. Greneker Studios, 26 N.Y.S. 2d 357 (N.Y. Sup. Ct. 1941).

      Voice: "Voice" was added to § 51 (but not to § 50) in 1995. Thus, one must be cautious of pre-1995 cases like Maxwell v. N.W. Ayer, Inc, 605 N.Y.S.2d 174, which dismiss voice-related right of publicity claims.

      Rights of deceased persons

      New York does not recognize a posthumous right of publicity. Mirone v. MacMillan, 894 F.2d 579, 585 (2d Cir. 1990).

      What constitutes a violation?

      To violate § 51, a use of a person's identity must be:

      • Within New York state; 
      • For advertising or trade purposes; and 
      • Without written consent. 

      The focus on advertising and trade means that a use designed to solicit sales of products or services is forbidden. But this category of advertising uses is somewhat narrow; § 51 contains a long list of exceptions to the right of publicity, which include protections for:

      • professional photographers against suits by their subjects; 
      • the use of an author's name, in connection with the work of that author; 
      • owners of copyrights in sound recordings; and 
      • using a person's identity in connection with products, if the person manufactured or sold those products under their identity. 

      There is also a significant newsworthiness exception. A defendant is not liable for using a person's identity in connection with a "newsworthy" article, such as a newspaper article. New York courts have interpreted "newsworthy" broadly, to include "a wide variety of articles on matters of public interest," not just "hard news" articles. Messenger v. Gruner + Jahr Printing, 94 N.Y. 2d 436, 441-42 (N.Y. 2000). Newsworthy uses of a person's identity do not violate the right of publicity statute, even though the publisher intends them to sell copies, attract advertising, or otherwise produce revenue.

      Advertisements that promote an otherwise privileged use of a person's identity are also exempt from liability. So, for example, if a magazine legitimately publishes photographs of a model, it can use those pictures to attract subscribers. Lerman v. Flynt Distributing, 745 F.2d 123, 130-31 (2d Cir. 1984).

      In some circumstances, the First Amendment "actual malice" doctrine may affect a case's outcome. Courts have held that defendants may forfeit the newsworthiness defense if the article in question contains a "severe" degree of falsity. Lerman v. Flynt Distributing, 745 F.2d 123, 132-33 (2d Cir. 1984) If the plaintiff is a public figure, though, the defendant can only be held liable if he published the falsehoods with actual malice. Id. at 135-38.

      Damages

      Section 51 provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. The damage award primarily compensates for emotional distress. See Garis v. Uncut-RawTV, No. CV 06–5031, 2011 WL 4404035, at *3-4 (E.D.N.Y, July 5, 2011).

      Section 51 also provides for punitive or exemplary damages, if certain conditions are met. A plaintiff can recover exemplary damages if the defendant knew that the plaintiff had not consented to the use of her identity. Id. at 4-5. Courts may award exemplary damages if necessary to deter future violations of Section 51.

      Statute of limitations

      Claims under Section 51 of the Civil Rights Law are subject to a one-year statute of limitations.  N.Y. Civ. Prac. Law & Rules, § 215(3).

      Jurisdiction: 

      Subject Area: 

      North Carolina Right of Publicity Law

      This page covers legal information specific to the State of North Carolina. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      North Carolina does not provide a statutory basis for right of publicity claims. In 2009, the North Carolina legislature proposed, but did not enact, legislation that addressed the right of publicity. 

      North Carolina appellate courts have only applied the missapropriation branch of the invasion of privacy tort in two cases. The Supreme Court of North Carolina last addressed misappropriation of image in 1938. 

      In Flake v. Greensboro News, 212 N.C. 780 (1938), the North Carolina Supreme Court recognized a cause of action for the unauthorized use of one's photograph or likeness in connection with an advertisement or other commercial enterprise. In Flake, the plaintiff brought suit on the basis of an advertisement published in a local newspaper that featured a picture of her dressed in a bathing suit. She showed evidence that the photograph was published in this instance without her consent. The court held that the unauthorized use of a plaintiff's photograph in connection with an advertisement or other commercial enterprise would give rise to a cause of action, but that absent a showing of special damages, only nominal and injunctive relief could be granted.

      It is not clear from the opinion in Flake whether the court treats the right of publicity as a property or privacy-based right. The court explicitly did not reach the question of whether First Amendment or newsworthiness defenses might apply to such a cause of action in other contexts.

      In Barr v. Southern Bell Tel. and Tel. Co., 13 N.C. App. 388 (1972), a telephone company published a phone directory including an advertisement for the plaintiff's rug cleaning company; however, although the telephone company included the plaintiff's name, it used the likeness of an unrelated third party in connection with the plaintiff's name. The plaintiff had signed an agreement that allowed for the commercial use of his image; however, the appellate court held that the publication of plaintiff's name in connection with the mistaken image exceeded the scope of this consent, and might justify a finding of invasion of privacy. The decision implies that consent is a defense, but that if a publication exceeds the scope of consent, that the publication may be actionable.

      A right of publicity claim in North Carolina is likey subject to the state's general three-year statute of limitations for personal injury claims. N.C. Gen. Stat. § 1-52(16).

      Jurisdiction: 

      Subject Area: 

      Ohio Right of Publicity Law

      This page covers legal information specific to the State of Ohio. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Generally speaking, the right of publicity in Ohio protects against unwarranted appropriation or exploitation of one's personality. Ohio has two systems of right of publicity law: a statutory right as a property interest, and a common law right as a right of privacy.

      Ohio codifies its statutory right of publicity in Ohio Rev. Code Ann. § 2741. You should first familiarize yourself with the statute.

      Ohio recognizes the unwarranted appropriation or exploitation of one's personality as an actionable invasion of privacy tort. Housh v. Peth, 133 N.E.2d 340, 341 (Ohio 1956). Ohio's right of publicity statute explicitly states that a right of publicity is a property right. Ohio Rev. Code Ann. § 2741.01(D). 

      At common law, Ohio has not distinguished the right of publicity from the tort of misappropriation; courts commonly refer to the tort as "appropriation of one's name or likeness." A federal court applying Ohio law said that the "right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Ohio's statutory right of publicity is found under Ohio Rev. Code Ann. § 2741, "Right of Publicity in Individual's Persona." Ohio's right of publicity statute expressly states that its provisions are in addition to common law rights. Ohio Rev. Code Ann. § 2741.08.

      The statute defines "right of publicity" as "the property right in an individual's persona to use the individual's persona for a commercial purpose." Ohio Rev. Code Ann. § 2741.01. The Ohio statute protects the following aspects of an individual's "persona," if those aspects have commercial value:

      • Name
      • Voice
      • Signature
      • Photograph
      • Image
      • Likeness
      • Distinctive appearance

      Ohio Rev. Code Ann. § 2741.01(A).  The statute does not define the term "commercial value." 

      The statute defines "commercial purpose" as the use of an aspect of an individual's persona in any of the following ways:

      • On or in connection with a place, a product, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
      • To advertise or solicit the purchase of products, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
      • To promote travel to a place.
      • For fundraising.

      Ohio Rev. Code Ann. § 2741.01.

      Who Can Exercise the Statutory Right of Publicity   

      The Ohio right of publicity statute protects living and deceased natural persons for the duration of a person's lifetime plus 60 years. Ohio Rev. Code Ann. § 2741.02. The statute applies to living individuals domiciled or residing in Ohio; it applies to deceased individuals only if  (1) the individual died on or after January 1, 1998, and (2) the individual's domicile or residence was in Ohio at the time of death. Ohio Rev. Code Ann. § 2741.03.

      In addition to the 60-year post-mortem protection, the Ohio right of publicity statute specifically prohibits the unauthorized use of the persona of a deceased member of the Ohio National Guard or the U.S. armed forces for ten years after the date of death. Ohio Rev. Code Ann. §§ 2741.02(A)(3) and 2741.99. The Ohio statute provides both civil remedies and criminal penalties for violations of the provisions. Ohio Rev. Code Ann. § 2741.99.

      Under the Ohio statute, the right of publicity is a property right and is freely transferable and descendible, in whole or in part, by:

      • contract
      • license
      • gift
      • trust
      • will
      • operation of the laws of intestate succession applicable to the state administering the majority of the real and personal property of an individual who died intestate, regardless of whether that state recognizes the right of publicity as a property right.

      Ohio Rev. Code Ann. § 2741.04.

      The statute requires that any consent to use an individual's right of publicity for a commercial purpose be made in writing, which includes written, electronic, digital or any other verifiable means of authorization. Ohio Rev. Code Ann. § 2741.05.  Consent may be given by any person or persons (including the individual whose right of publicity is at issue) who (1) collectively own more than 50% of the right of publicity, or (2) is expressly authorized in writing to grant consent by the collective owner(s) of more than 50% of the right. Ohio Rev. Code Ann. § 2741.05(A).

      The following persons may bring a civil action to enforce the publicity rights set out in the Ohio statute: (1) a person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual's right of publicity, subject to any licenses regarding that right of publicity; (2) a person, including a licensee of an individual's right of publicity, who is expressly authorized in writing by the owner or owners of an individual's right of publicity to bring a civil action; (3) a person to whom ownership or any portion of ownership of an individual's right of publicity has been transferred. Ohio Rev. Code Ann. § 2741.06(A).

      Before bringing an civil action, a person who holds partial ownership of an individual's right of publicity must give notice to that person and to any other person to whom ownership has been transferred. That individual, and any other transferees of the right, may object to the proposed civil action within time frames set forth in the statute. If holders of more than fifty percent (50%) of the right of publicity object in a timely fashion, the action may not proceed. Ohio Rev. Code Ann. §§ 2741.06(B), (C).

      What Constitutes a Statutory Violation 

      The elements of a civil claim under the Ohio right of publicity statute are:
      • use of any aspect of an individual's persona,
      • for a commercial purpose,
      • during the individual's lifetime or the 60 years after the date of the individual's death,
      • without written consent.

      Ohio Rev. Code Ann. § 2741.02.

      Mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

       

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      Ohio recognizes a common law cause of action for the unauthorized commercial use of a living person's name, likeness or identity as a right of privacy. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977). "The fundamental wrong is the appropriation for one's self of the benefits of another's name, likeness, or identity, and the wrong is the same whether or not that benfit is pecuniary." Id. at 458. That court held that the applicable principles of the tort were set out in the Restatement of Torts (Second) § 652C.

      "The right of publicity is an intellectual property right of recent origin which is the inherent right of every human being to control the commercial use of his or her identity." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (internal citations omitted).

      Ohio's common law right of publicity protects natural persons, but does not extend to deceased persons. See Reeves v. United Artists, 765 F.2d 79 (6th Cir. 1983), Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir. 1970).

      The Supreme Court of Ohio has not expressly stated whether Ohio common law protection requires that the person's identity have commercial value. See Vinci v. Am. Can Co., 459 N.E.2d 507, 510 (Ohio 1984). However, one court has  stated that a plaintiff must plead that the misappropriated name or likeness has "intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise." Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)

       

      What Constitutes a Violation of the Common Law Right

      The elements of a common law claim of appropriation of a person's name or likeness are:

      • Use of another person's name or likeness.
      • For one's own benefit.

      The use or benefit of a person's name does not have to be commercial.  Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977): "The interest which the law protects is that of each individual to the exclusive use of his own identity, and that interest is entitled to protection from misuses whether the misuse is for commercial purposes or otherwise."

      A defendant must have appropriated the reputation, prestige, social, or commerical standing, public interest, or other values of a person's name or likeness. Brooks v. American Broadcasting Co., 727 F. Supp. 431 (N.D. Ohio 1991), aff'd, 999 F.2d 167 (6th Cir. 1991), cert. denied, 510 U.S. 1015 (1993).

       

      DAMAGES

      Statutory 

      Remedies under Ohio's right of publicity statute include:
      • injunctive and other relief (e.g. impoundment and destruction of items),
      • actual damages,
      • statutory damages,
      • attorney's fees, costs, and expenses,
      • treble damages, and
      • punitive or exemplary damages.

      Ohio Rev. Code Ann. § 2741.07.

      As noted above, the statutory remedies are supplemental to any other remedies provided by state or federal statute or common law. Ohio Rev. Code Ann. § 2741.07.

      In regards to statutory damages, a plaintiff may recover statutory damages in lieu of actual damages. The trier of fact has discretion to award statutory damages of  (1) not less than $2,500, and (2) not more than $10,000. Ohio Rev. Code Ann. § 2741.07(A)(1)(b). Factors to be considered in setting the amount of a statutory damage award include the:

      • willfulness of the violation
      • harm to the persona in question
      • ability of the defendant to pay a civil damage award

      Ohio Rev. Code Ann. § 2741.07(A)(1)(b).

      Under the Ohio statute, a court may award treble damages against the owners or employees of any advertising medium in which an advertisement or solicitation is published or disseminated, is there is a finding that the owners or employees had knowledge of the unauthorized use of the persona. Ohio Rev. Code Ann. §§ 2741.02(E) and 2741.07(B)(2).

      Common Law 

      Civil remedies under Ohio common law include actual damages and injunctive relief.  The court in James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 124 (Ohio Ct. App. 2006), held that a plaintiff need not establish actual damages to prevail on a misappropriation of name claim, and a may seek to recover nominal, compensatory, and if appropriate, punitive damages for claims of misappropriation. 


      LIMITATIONS AND DEFENSES 

      All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

      Statutory  

      The Ohio right of publicity statute specifically exempts use of an individual's persona in a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement not exempt; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted in any of these works. Ohio Rev. Code Ann. § 2741.09 (A)(1).

      There are also newsworthy exemptions in the statute. For example, the statute specifically exempts use of:

      • an individual's name to truthfully identify the individual as the author of or contributor to a written work, or the performer of a recorded performance where the written work or the recorded performance is otherwise lawfully reproduced, exhibited or broadcast;
      • an aspect of an individual's persona in connection with the broadcast or reporting of an event or topic of general or public interest; and
      • an individual's persona solely in the individual's role as a member of the public if the individual is not named or otherwise singled out.

      Ohio Rev. Code Ann. § 2741.09 (A)(2),(3),(4), see also Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004) (right of privacy under Ohio law does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.)

      Other exemptions include use of:

      • an individual's persona by an institution of higher education if the individual is or was a student at, or a member of the faculty or staff of, the institution; and the use is for educational purposes or to promote the institution and its educational or institutional objectives; and
      • an individual's persona that is protected by the First Amendment to the Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

      Ohio Rev. Code Ann. § 2741.09(5),(6). 

      The statute also permits use of a deceased individual's persona for a commercial purpose if the name of the individual was the name of a business entity or a trade name at the time of the individual's death. Ohio Rev. Code § 2741.02(B)(2). 

      Common Law

      As noted above, mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

      In Zacchini v. Scripps-Howard Broad. Co., the Supreme Court held that there is no consitutional privilege immunizing television stations from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. 433 U.S. 562, 578 (1977).

      There is a legitimate public interest exception for the right of publicity. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004). There is no misappropriation when a person's name or likeness is used in contact of general news reporting. Brooks v. American Broadcasting Co., 737 F. Supp. 431 (N.D. Ohio 1991). 

       

      STATUTE OF LIMITATIONS 

      Statutory  

      An action must be brought within four years of a violation. Ohio Rev. Code Ann. § 2741.07(C).

      Common Law  

      A four year statute of limitations applies to Ohio's common law right of publicity actions under the invasion of privacy tort. Ohio Rev. Code Ann. § 2305.09(D).

       

      Jurisdiction: 

      Subject Area: 

      Pennsylvania Right of Publicity Law

      This page covers legal information specific to the State of Pennsylvania. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Generally speaking, the right of publicity in Pennsylvania protects against unauthorized uses of a person's name or likeness for commercial purposes. Pennsylvania has two systems of right of publicity law: a statutory right, and a common law right.

      Pennsylvania codifies its statutory right of publicity in 42 Pa. Cons. Stat. § 8316. You should first familiarize yourself with the statute.

      At common law, Pennsylvania has distinguished the right of publicity from the tort of misappropriation (called "invasion of privacy by appropriation of name or likeness"). However, it is unsettled in Pennsylvania if 42 Pa. Cons. Stat. § 8316 has absorbed the common law tort of invasion of privacy by appropriation of name or likeness. Please see below for more information on these distinctions. 

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Pennsylvania's statutory right of publicity is found under 42 Pa. Cons. Stat. § 8316. The official title of the statute is "Unauthorized Use of Name or Likeness," but it is commonly referred to as the "Right of Publicity" statute. "Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose" may bring an action for infringement. 42 Pa. Cons. Stat. § 8316. 

      A "natural person," as defined by the statute, is "a living person or a deceased person who was domiciled within this Commonwealth at the time of such person's death." 42 Pa. Cons. Stat. § 8316(e).

      The term "name" or "likeness" is defined in the statute as any attribute of a natural person that identifies him to an ordinary, reasonable viewer or listener. These attributes include:

      • Name
      • Signature
      • Photograph
      • Image
      • Likeness
      • Voice
      • A substantially similar imitation of one or more of the above

      42 Pa. Cons. Stat. § 8316(e).

      The term "commercial value" means a "valuable interest in a natural person's name or likeness that is developed through the investment of time, effort and money." 42 Pa. Cons. Stat. § 8316(e); see also Lewis v. Marriott Intern. Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007)(arguing that revenue figure evidence show commercial success of plaintiff's wedding packages, and this supports the claim that plaintiff's investment of time, effort and money in promoting and selling wedding packages has "commercial value").

      Who Can Exercise the Statutory Right of Publicity   

      Though it does not expressly address transferability, the statute allows other parties, including individuals, firms and corporations, to bring an action on behalf of a person whose right of publicity has been violated. A party can act on behalf of a natural person if authorized in writing by that person to license the commercial or advertising purposes of his name or likeness. 42 Pa. Cons. Stat. § 8316(b)(4).

      The statute also protects a deceased person if they were domiciled within Pennsylvania when they died. 42 Pa. Cons. Stat. § 8316(a),(e). The statute recognizes a thirty year post-mortem right of publicity. 42 Pa. Cons. Stat. § 8316(c); see also Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).

      The statutory post-mortem right of publicity in Pennsylvania can be enforced by:

      • A person, firm, or corporation authorized in writing to license the commercial or advertising use of the natural person's name or likeness by:
        • the natural person during his lifetime; or
        • a will or other testamentary device.
      • An executor named in a will or designated by a court;
      • The decedent's surviving spouse or, if there is no surviving spouse, other heir or group of heirs who have at least a 50% interest in the decedent's estate.

      42 Pa. Cons. Stat. § 8316(b)(3).

      What Constitutes a Statutory Violation 

      The elements of a claim for violation of Pennsylvania's Right of Publicity statute are:

      1. The natural person's name or likeness has commercial value; and
      2. The name or likeness was used for any commercial or advertising purpose; and
      3. The name or likeness was used without written consent of the natural person or the written consent of any party authorized to give consent.

      42 Pa. Cons. Stat. § 8316(a).

      Under Pennsylvania's Right of Publicity statute, a natural person's name or likeness can be identified by any attribute that identifies that natural person to an ordinary, reasonable viewer or listener. 42 Pa. Cons. Stat. § 8316(e).

      The law does not apply when:

      1. The person appears as a member of the public and is not named or otherwise identified,
      2. The name or likeness is associated with a news report or presentation having public interest,
      3. The name or likeness is an "expressive work" or "original work of fine art" [terms defined in the statute],
      4. The name or likeness is associated with an announcement for a commercial or advertising purpose for certain permitted uses in paragraph (2) and (3) above,
      5. It is associated with the identification of a natural person as the author or contributor to a written work, or the performer of a recorded performance under circumstances in which the written work or recorded performance is lawfully produced, reproduced, exhibited, or broadcast. 

      42 Pa. Cons. Stat. § 8316(e)(2).

      The statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

      Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action (1) to enjoin the unauthorized use, and/or (2) to recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a); see also Tillery v. Leonard & Sciolla, LLP, 437 F. Supp. 2d 312 (E.D. Pa. 2006).

       

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      Pennsylvania recognizes a common law right of publicity. "The right of publicity inures to an individual who seeks to protect and control the commercial value of his name or likeness." Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856, 862 (E.D. Pa. 1985). The court in Eagle's Eye called the right a "misappropriation of right of publicity," and claimed it was derived from the right of privacy, though noted it was "entirely" different from the right of privacy. Eagle's Eye at 862; see also Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007); Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3 (E.D. Pa. Mar. 2, 2007); World Wrestling Federation Entm't, Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 443 (W.D. Pa. 2003)

      The common law right of publicity grants a person or a group the exclusive right to control the commercial value of his/their name and likeness. Eagle's Eye at 862. The right of publicity in Pennsylvania protects individuals and groups (e.g., musical groups) by giving them the right to control the commercial use of their inherently distinctive names and likenesses. See Brockum Co. v. Blaylock, 729 F. Supp 438, 445–46 (E.D. Pa. 1990); Apple Corps Ltd. v. Button Master, P.C.P., Inc., No. 96-5470, 1998 WL 126935, at *13 (E.D. Pa. Mar. 19, 1998); Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 344–45 (E.D. Pa. 1993); Hogan v. A. S. Barnes & Co., 114 U.S.P.Q. 314, 230 (Pa. Com. Pl. 1957) (finding violation of right of publicity, but calling it "unfair competition under another label).

      The right only applies to natural persons. Fraternal Order of Police v. The Crucifucks, No. 96-2358, 1996 WL 426709, at *2 (E.D. Pa. July 29, 1996) However, in dicta, the District Court for the Eastern District of Pennsylvania, in a case about blues singer Bessie Smith, implied (by considering who had the capacity to sue for violations after the right after Smith's death under Pennsylvania law) that there is a postmortem exclusive right to use an individual's name and likeness. See Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D. Pa. 1979) ("In short, far from being a hollow formality, the requirement that a qualified administrator or executor sue under the survival statute reflects the heart of the statute, which is that a cause of action survives in favor of the decedent's estate.")

      A corporation can own an individual or group's right of publicity, as a corporate third-party licensee. Brockum Co. v. Blaylock, 729 F. Supp. 438, 446 (E.D. Pa. 1990). The licensee has the authority to enjoin the use of the licensor's name or likeness. Nice Man Merch., Inc. v. Logocraft Ltd., No. 91-7475, 1992 WL 59133, at *5 (E.D. Pa. Mar. 18, 1992); see also Apple Corps Ltd., No 96-5470, 1998 WL 126935, at *14 (E.D. Pa. Mar. 19, 1998). Although Pennsylvania recognizes the right of publicity of a group of persons, courts have held that the common law right of publicity does not protect the trademarks and images of corporations, partnerships or similar institutions. See Apple Corps Ltd., No 96-5470, 1998 WL 126935 (E.D. Pa. Mar. 19, 1998); Eagle's Eye, Inc., 627 F. Supp. 856.

      What Constitutes a Violation of the Common Law Right

      To establish a violation of the right of publicity, the plaintiff must prove that the defendant is appropriating the plaintiff's valuable name or likeness, without authorization, to defendant's commercial advantage. Philadelphia Orchestra Ass'n, 821 F. Supp. at 349. In order to infringe a group's right of publicity, the name appropriated must have a secondary meaning. Id.

      An allegation of commercial value may not be required, as courts apply a presumption of commercial value based on the act of a defendant's decision to use a person's identity. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3. "Inherent in the act of a defendant using a person's name ... in a commercially advantageous manner is the presumption that the identity has commercial value." Fanelle v. Lojack Co., No. 99-4292, 2000 WL 1801270, at *11 (E.D. Pa. Dec. 7, 2000).

      Some courts conflate the right of publicity with the separate concept of misappropriation/invasion of privacy by appropriation of name or likeness. One distinction between the torts is that violation of the right of publicity requires an element of commercial advantage, while invasion of privacy by appropriation of name or likeness does not. 

       

      Right of Publicity vs. Invasion of Privacy by Appropriation of Name or Likeness

      The Pennsylvania Supreme Court has expressly recognized a cause of action for "invasion of privacy" by "appropriation of name or likeness." See Corabi v. Curtis Publishing Co., 273 A.2d 899 (Pa. 1971), Vogel v. W. T. Grant Co., 327 A.2d 133 (Pa. 1974); Chan v. County of Lancaster, No. 10-cv-03424, 2011 WL 4478283 (E.D. Pa. Sept. 26, 2011). In addition, courts in Pennsylvania have relied upon § 652C of the Restatement (Second) of Torts for cases involving invasion of privacy by appropriation of name or likeness. AFL Phila. LLC v. Krause, 639 F. Supp. 2d 512, 529-30 (E.D. Pa. 2009). 

      Many courts in Pennsylvania conflate the right of publicity with misappropriation of name or likeness. But although the two torts are similar under Pennsylvania law, the "right of publicity" is not identical to "invasion of privacy by appropriation of name or likeness." One distinction is that the invasion of privacy by appropriation of name or likeness does not require the appropriation to be commercial. AFL Phila. LLC, 639 F. Supp. 2d at 531.

      In 2003, the Pennsylvania legislature enacted 42 Pa. Cons. Stat. § 8316. Since then, at least one district court has stated that the cause of action for invasion of privacy by misappropriation of identity has been "subsumed" by § 8316. Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa.2007).  However, in a later decision, the same court held that it was hesitant to rule, absent guidance from the legislature or the Supreme Court of Pennsylvania, that this previously-recognized common law cause of action was subsumed by statute. Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007). "[A]s a matter of statutory construction, 'statutes are not presumed to make changes in the rules and principles of common law or prior existing law beyond what is expressly declared in their provisions.'" Id. Therefore, it remains unsettled whether § 8316 has superceded the tort of invasion of privacy by appropriation of name or likeness. 

      A federal court in Pennsylvaniahas  stated that invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3.

       

      DAMAGES

      Statutory 

      Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action to enjoin the unauthorized use and recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a).

      Common Law 

      We have not found any cases discussing damages or injunctive relief. There have been cases where injunctive and monetary relief has been granted, but in an award combined with awards on trademark or other claims. See Apple Corps Ltd., No 96-5470, 1998 WL 126935; Brockum Co., 729 F. Supp at 445–46.

      "Damages...are intended to protect the property right of an individual to the exclusive use of his own identity, notoriety, or skill," Worthy v. Carroll, No. 02-6882, 2003 WL 25706359, at *4 (E.D. Pa. July 16, 2003).

      The court in Seale v. Gramercy Pictures, 964 F.Supp. 918, 929-30 (E.D. Pa. 1997) predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Unfair Competition § 46 as its standard for the right of publicity. The Restatement (Third) of Unfair Competition § 46 defines the right of publicity as follows: "One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49 [injunctive and monetary relief]." Restatement (Third) of Unfair Competition § 46.

       

      LIMITATIONS AND DEFENSES 

      All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

      Statutory  

      As noted above, the statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

      Pennsylvania's right of publicity statute is not preempted by federal copyright law because it requires a showing of commercial value, an additional element beyond a federal copyright infringement claim. Facenda, 542 F.3d at 1027; see also 42 Pa. Cons. Stat. § 8316(a),(e). 

      Common Law

      Court have recognized several common law exceptions for the common law right of publicity, including First Amendment defenses and protection for publications about newsworthy public figures.  

      Federal courts have found that First Amendment considerations can outweigh enforcement of a publicity right. Seale, 949 F. Supp. at 337. The Supreme Court of Pennsylvania has held that "a public figure has no exclusive rights to his own life story" and others do not need consent or permission of the subject to write a biography of a celebrity. Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971).

      STATUTE OF LIMITATIONS 

      Statutory  

      Though not a statute of limitations per se, under Pennsylvania's right of publicity statute the right of publicity is descendible. However no action can be commenced more than thirty years after the death of the natural person who is the subject of the dispute. 42 Pa. Cons. Stat. § 8316(c). 

      Depending on whether the right of publicity is treated as a property right or privacy right, it could be subject to different limitations. For example, claims of privacy are governed by a one year statute of limitation. 42 Pa. Cons. Stat. § 5523(1).  Property claims have a two year statute of limitations. For example, statutory trademark claims under the Lanham Act are subject to Pennsylvania's two-year statute of limitations. See Beauty Time, Inc. v. VU Skin Systems, Inc., 118 F.3d 140, 143 (3d Cir. 1997), Guardian Life Ins. Co. of America v. American Guardian Life Assur. Co., 943 F.Supp. 509, 517 (E.D. Pa. 1996).

      Common Law  

      With respect to the common law right of publicity, the applicable statute of limitations has not been interpreted under Pennsylvania law.

      There is a two year "catchall" statute of limitations that might govern the right of publicity. 42 Pa. Cons. Stat. § 5524(7).  Claims of misappropriation (invasion of privacy) are governed by a one-year statute of limitations. 42 Pa. Cons. Stat. § 5523(1).

      Jurisdiction: 

      Subject Area: 

      Texas Right of Publicity Law

      This page covers legal information specific to the State of Texas. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Generally speaking, the Right of Publicity in Texas protects against unauthorized uses of a person's name or likeness for commercial purposes. Texas has two systems of Right of Publicity law: a statutory posthumous right, and a common law right.

      Texas codifies its statutory Right of Publicity at Title 4, Chapter 26 of the Property Code. You should first familiarize yourself with that statute. Texas has not distinguished its common law right of publicity from misappropriation, using those concepts interchangeably. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999) ("The tort of misappropriation of one's name or likeness is generally referred to as the ‘Right of Publicity.'").

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      Texas's statutory Right of Publicity is a property right that protects a person's right in his or her name and likeness after his or her death. The statute applies to anyone who died on or after January 1, 1937, whose identity has commercial value at or after the time of his or her death. Tex. Prop. Code Ann. § 26.003(2). The Right of Publicity lasts for 50 years after the death of the individual. Tex. Prop. Code Ann. §§ 26.003(1), 26.012(d).

      Texas's statute, Texas Property Code, T. 4, Ch. 26, known as the "Buddy Holly Bill," protects a person's:

      • name,
      • voice,
      • signature,
      • photograph, or
      • likeness.

      The term "name" applies only to the "actual or assumed name used by an individual which, when used in conjunction with other information, is intended to identify a particular person." Tex. Prop. Code Ann. § 26.001.

      The term "photograph" includes still or moving pictures or reproductions of an individual in which a viewer could "reasonably determine" the individual's identity with the naked eye. Tex. Prop. Code Ann. § 26.001; see also Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985).

      The term likeness has not been explicitly defined, but this category includes pictures, drawings, and the use of a singer's voice. It does not include accounts of general incidents from one's life or one's life story, especially if they are fictionalized. See Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); see also O'Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. Dec. 19, 2003).

      Who Can Exercise the Statutory Right of Publicity

      The Right of Publicity is a transferable, descendible property right. Tex. Prop. Code Ann. §§ 26.004-.005. Because the right is freely transferable in whole or part, only an individual who owns more than half may exercise that right and have standing to sue for infringement. Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009). The right can be transferred before or after death by contract, trust, or testamentary documents. Tex. Prop. Code Ann. § 26.004. If the Right of Publicity has not been transferred before or upon death, it vests in the individual's spouse and children or grandchildren. Tex. Prop. Code Ann. § 26.005. In addition, if the Right of Publicity does not vest by transfer or operation of law within a year of the individual's death, it is terminated. Tex. Prop. Code Ann. § 26.010.

      As in California, to exercise this Right of Publicity within the first year of the individual's death, the holder must register the property right claim with Texas's Secretary of State. Tex. Prop. Code Ann. §§ 26.006-.008. After a year has passed, the owner may exercise the Right of Publicity whether or not the property right claim is registered. Tex. Prop. Code Ann. § 26.009. Registered claims constitute prima facie evidence of a "valid claim to a property right" that will generally prevail over a conflicting, unregistered claim. Tex. Prop. Code Ann. § 26.007.

      What Constitutes a Statutory Violation

      Under Texas's statute, a person may not, without the written consent of the property right holder, use a deceased individual's name, voice, signature, photograph, or likeness, "in connection with products, merchandise, or goods; or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services." Tex. Prop. Code Ann. § 26.011.

      The Texas statute does not provide for a specific test for identifying an unauthorized use associated with the Right of Publicity, though courts have often applied the common law test discussed below.

      The Texas statute also provides an exception for media use including:

      • a play, book, film, radio program, or television program;
      • a magazine or newspaper article;
      • material that is primarily of political or newsworthy value;
      • single and original works of fine art; or
      • an advertisement for the above uses.

      Tex Prop. Code Ann. § 26.012; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

      THE COMMON LAW RIGHT

      What the Common Law Right Protects

      Texas common law recognizes a right of publicity that protects the name or likeness of living persons (in contrast to the statutory right, which arises after death). Treated more as a privacy right than property right, this common law right of publicity has not been distinguished from misappropriation. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); see also Brown v. Ames, 201 F.3d 654 (5th Cir. 2000); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001).

      This right protects an individual's "name or likeness," which has been interpreted as an individual's "identity." See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). Texas courts have interpreted this in a similar manner to the statutory right, with the same limitation on the use of one's life story. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009). Like the statute, the common law intends to protect the value associated with a name or identity rather than the name per se. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999).

      What Constitutes a Violation of the Common Law Right

      Texas state courts and the Fifth Circuit have articulated a traditional three-prong test for misappropriation. These common law elements include:

      • Did the defendant appropriate the plaintiff's name or likeness for its value rather than incidentally or for a newsworthy purpose?
      • Can the plaintiff be identified from the publication?
      • Did the defendant receive an advantage or benefit as a result of the appropriation?

      See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). If the answer to all three questions is yes, then there has been an unauthorized use of an individual's name or likeness.

      It is sufficient to satisfy the third prong of this test if the defendant's use of the individual's name likely led to some benefit, commonly commercial, that the defendant would otherwise not have received. The plaintiff generally does not need to prove that the defendant actually made a profit from the use, though the benefit cannot be purely incidental. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); Topheavy Studios, Inc. v. Doe, 33 Media L. Rep. 2192, 2005 WL 1940159 (Tex. App. Aug. 11, 2005).

      DAMAGES

      Statutory

      For claims brought under Texas's statutory Right of Publicity, the statute provides for the following damages:

      • the amount of damages the person who owns the property right sustained as a result of the unauthorized use or $2,500, whichever is greater;
      • the amount of any profits from the unauthorized use that are attributable to that use (established by a showing of the gross revenue attributable to the unauthorized use minus any expenses that the defendant may prove);
      • the amount of any exemplary damages that may be awarded; and
      • reasonable attorney's fees and expenses and court costs incurred in recovering the damages and profits established by this section

      Tex. Prop. Code Ann. § 26.013. 

      Common Law

      A plaintiff may recover general damages for a right of publicity/misappropriation claim, which may include claims for mental and physical pain and suffering. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980). Special damages and punitive damages may be recovered in exemplary and/or intentional cases, such as when the plaintiff's endorsement has been sold on the open market rather than used without authorization by the defendant alone. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980); see also Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

      LIMITATIONS AND DEFENSES

      All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest. As mentioned above, the Texas statute also contains internal protections for speech by providing exceptions for art, books, uses of political or newsworthy value, and more. Tex Prop. Code Ann. § 26.012. Accordingly, courts often rely upon the statutory safe harbor rather than address the First Amendment defenses directly. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

      The First Amendment is more often applied in common law right of publicity cases brought by living individuals, given the lack of statutory exemptions. For example, in Busch v. Viacom, the court ruled that a fake endorsement as part of a news satire program that made use of a video clip in the public domain was a protected use of the plaintiff's name and likeness under the First Amendment's protection of parody. Busch v. Viacom, 477 F. Supp. 2d 764 (N.D. Tex. 2007).

      Texas's statute also provides for a defense to a Right of Publicity claim if the user "has acted in reliance on the results of a probate proceeding governing the estate of the deceased personality in question." Tex Prop. Code Ann. § 26.015; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009); Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

      In addition, the property right holder's consent to the use of an individual's name or likeness bars recovery, though this may depend on the scope and form of the consent. See King v. Ames, 1997 WL 86416 (N.D. Tex Feb. 18, 1997); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975). For example, one case was remanded to determine whether an athlete's consent to use of his name and likeness in an advertisement for a college football program extended to his likeness portrayed in a Coca-Cola advertisement included in that football program. See Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975).

      The common law right of publicity claim is likely subject to Texas' general two-year statute of limitations for personal injury actions.  Whitehurst, 2009 WL 3052663 at *5 (citing Tex. Civ. Prac & Rem. Code § 16.003(a)). Although no case has yet addressed the limitations period applicable to the statutory right, it is likely that it would also be subject to the limitations period in Tex. Civ. Prac & Rem. Code § 16.003(a) as an injury to a property right.

      Jurisdiction: 

      Subject Area: 

      Virginia Right of Publicity Law

      This page covers legal information specific to the Commonwealth of Virginia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Virginia law generally forbids unauthorized use of a person's name or likeness for commercial purposes. There is no common law right of action for misappropriation or right of publicity in Virginia, but Virginia law does provide a statutory right of action against misappropriation. Because the statute contradicts prior common law, courts have applied the statute very narrowly.

      It is also a criminal offense to use a person's name or picture for a commercial purpose without authorization in Virginia. A violation of Title 18.2, Chapter 6, Article 8, Section 216.1 of the Code of Virginia is a misdemeanor punishable by a fine of not less than $50, and not more than $1000.

      Virginia codifies its statutory right against misappropriation at Title 8.01, Chapter 3, Article 3, Section 8.01-40 of the Code of Virginia. You should first familiarize yourself with that statute.

      THE STATUTORY RIGHT

      What the Statutory Right Against Misappropriation Protects

      The statute, as it has been narrowly construed, provides a cause of action only when a "person, firm, or corporation" uses an individual's "name, portrait, or picture." Other identifying traits, such as voice or personality, and identifying descriptions do not trigger the cause of action. The statute also likely does not provide any protection to businesses or other legal or corporate entities. While the Supreme Court of Virginia has not addressed that question, local and federal courts have found that, within the context of the statute, the term "person" refers to an individual.

      What Constitutes a Statutory Violation

      The statute only prohibits use of person's name or image for trade or advertising purposes. Use for advertising purposes and for purposes of trade are distinct concepts.

      Unauthorized use of a name or likeness for advertising purposes "has almost uniformly been held actionable" in Virginia. Town & Country Props., Inc. v. Riggins, 457 S.E.2d 356, 395 (Va. 1995). A name or likeness is used for advertising purposes when "it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service." Id. This can include a personal publication. In Town & Country Properties, the Supreme Court of Virginia held a real estate broker liable for attempting to generate interest in a property by distributing fliers advertising that a professional football player had formerly lived there, without permission from the player. A local Virginia court has also held that use of a person's name as part of a commercial web address violates the statute. Crump v. Forbes, 52 Va. Cir. 52 (Warren County 2000).

      It is much more difficult to invoke the statute against a party for improperly using a name or likeness for purposes of trade. While "purposes of trade" is not defined in the statute or case law, courts most often discuss it in juxtaposition to newsworthiness. Courts have expressed concern that interpreting ‘purposes of trade' too broadly would discourage the uninhibited dissemination of ideas. For instance, in Falwell v. Penthouse International, the Court found that a magazine interview with a prominent figure was not used for purposes of trade, even though, like "everything that appears in a magazine" it was placed there with the intention of increasing sales. 521 F.Supp 1204, 1210 (Va. 1981). However, in Arlington v. New York Times Co. (New York law is very similar to Virginia law in this area, and Virginia courts frequently look to New York law for guidance. Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir. 1986) rev'd on other grounds sub nom Hustler Magazine, Inc. v. Falwell.), the New York Court of appeals found that, while a claim could not be sustained against a news publisher that used a citizen's image in conjunction with a news story, a claim could be brought against the photographer and agent who sold the picture to the newspaper. The court stated that a person "operating independently of [a] publisher" who engaged in "nonconsensual selling of [a] photograph" would have "commercialized the photograph in furtherance of his trade." 55 N.Y.2d 433 (1982).

      The statute does not apply to general newsgathering. A person's name or image may be used to promote a report on a newsworthy event or matter of public interest as long as there is a real relationship between the use of a person's name or image and the report, and the report is not an advertisement in disguise. In WJLA-TV v. Levin, the Court decided that a television station did not violate the statute when it used the image of a surgeon who had been accused of sexually assaulting his patients in promotional announcements for a news segment regarding the allegations. The Court conceded the station may have used the promotions partially to increase its ratings during sweeps week, but concluded that the station had not violated the statute, because "[i]t is a newsworthy event and a matter of public interest when a physician is accused by his patients of sexually assaulting them." WJLA-TV v. Levin, 564 S.E.2d 383, 395 (Va. 2002).

      Who Can Exercise the Statutory Right Against Misappropriation?

      The person whose name or image has been used without consent can bring an action against the offending party within five years of the offense. For twenty years following a person's death, his or her likeness may not be used without the written consent of that person's survivors. Survivors may bring an action for misappropriation under this statute up to twenty years after the death.

      DAMAGES

      Individuals have the right sue for injunctions preventing offending parties from misappropriating their names and images, as well as, in some circumstances, the right to sue for damages both to compensate for injuries caused by the misappropriation and to punish the offending party.

      1. Injunctive Relief

      Section 8.01-40 allows a person whose identity has been misappropriated to ask a court to prevent the offender from continuing to use the identity, or, where potential misappropriation is discovered before the name or image is used, to prevent the potential offender from using the identity without consent.

      2. Compensatory Damages

      A person whose name or image has been misappropriated may sue to recover damages to compensate for any injury he or she suffered as a result of that misappropriation. It is unclear what qualifies as an "injury" under the statute. A celebrity who would generally expect a fee in return for an endorsement can clearly sue to recover the amount of a reasonable fee. In Riggins, the Supreme Court of Virginia affirmed the jury's decision to grant Riggins (a famous football player featured on a real estate flier without his consent) $25,000 in compensatory damages based on evidence that $25,000 would be a reasonable fee for use of his name and that Riggins had received fees for product endorsements running from $20,000 - $90,000.

      While the Virginia courts frequently discuss the statute as protecting a property interest in a person's identity, which would indicate that a layperson could receive some minimal compensation for misappropriation of identity, the courts have not applied it in this way. Riggins is the only reported case awarding compensatory damages under this statute, and a Virginia circuit court has held that, under the plain language of the statute, a person can only recover compensatory damages if he or she can show that a quantifiable injury flowed from the misappropriation.

      3. Punitive Damages

      A jury may award punitive damages if the defendant knowingly used the plaintiff's name or likeness and the use violated the statute. The plaintiff does not need to prove that the defendant knew that he or she was engaging in illegal conduct or that that the defendant engaged in "wanton or malicious" conduct. Punitive damages cannot exceed $350,000. In Riggins, the court affirmed the jury's decision to grant Riggins an additional $25,000 in punitive damages (the court reduced the jury's award from $28,608, since that amount exceeded the amount of damages Riggins had requested).

      LIMITATIONS AND DEFENSES

      Constitutional

      The Constitution prevents the publication of news from constituting a "purpose of trade" under the statute. As a U.S. District Court found in Falwell v. Penthouse International, if the "purposes of trade" requirement were construed to cover general newsgathering, it would "intrude on important constitutional freedoms, which guarantee the uninhibited dissemination of ideas." 521 F. Supp. 1204, 1210 (W.D. Va. 1981). In finding that a newspaper had not violated an assault victim's right to privacy under the statute by publishing her name as part of a news story, a Virginia circuit court held that, "[T]he right of the individual to privacy is limited by the public's right to have a free dissemination of news and information." Barker v. Richmond Newspapers, Inc., 14 Va. Cir. 421 (1973)

      Common Law

      The use of the plaintiff's name must be reasonably believable to fall within the statute's protection. If a name of image is used as part of a parody that is not reasonably believable, it is not used for advertising or trade purposes under the statute. In Falwell v. Flynt, the Fourth Circuit found that a comedic ad-parody was not reasonably believable when it featured the photo of a well-known reverend along with the text of a fictional interview in which he discussed an incestuous rendezvous with his mother in an outhouse. The add was not reasonably believable both because of its content and because it contained a disclaimer reading "ad parody-not to be taken seriously." 797 F.2d 1270.

      The fact that the assertion made in the unauthorized material is true is not a defense to a claim under the statute. For example, in Riggins, the advertising fliers correctly stated that Riggins had lived in the house the real estate agent was selling. Yet the court decided that the right to print truthful information does not include the right to use that information for commercial purposes.

      Statute of limitations

      Claims under Virginia's statutory right of publicity are subject to a five-year statute of limitations as a claim for injury to property under Va. Code § 8.01-243(B). Lavery v. Automation Mgmt. Consultants, Inc., 360 S.E.2d 336, 339 (Va. 1987).

      Jurisdiction: 

      Subject Area: 

      Washington Right of Publicity Law

      This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

      Washington's right of publicity statute, the Washington Personality Rights Act (WPRA), is codified at Wash. Rev. Code Ann. § 63.60. You should familiarize yourself with the statute, but note that certain elements of the law addressing the geographic reach of Washington's post-mortem right of publicity have been held unconstitutional by the United States District Court for the Western District of Washington (see Rights of the Deceased, below).

      There is also a common law tort of appropriation in Washington. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1113 (W.D. Wash. 2010). This tort appears to function comparably to the statutory right of publicity, but has been rarely addressed in courts applying Washington law.

      THE STATUTORY RIGHT

      What the Statutory Right of Publicity Protects

      The statute states that "every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness." § 63.60.010. Likeness includes depictions of "distinctive appearance, gestures, or mannerisms." Wash. Rev. Code Ann. § 63.60.020. "Photograph" includes both still photography and video that makes the individual "readily identifiable." § 63.60.020.

      "Personalities" refers to individuals whose identities carry commercial value, such as celebrities. § 63.60.020. The United States District Court for the Western District of Washington has noted the ambiguity of this definition, as any individual's identity can be said to have value. Experience Hendrix, L.L.C. v. Hendrixlicensing.com, Ltd., 766 F. Supp. 2d 1122, 1131 (W.D. Wash. 2011).

      What Constitutes a Statutory Violation

      Statutory standards for infringement are codified at Wash. Rev. Code Ann. § 63.60.050. The unauthorized use of one's "name, voice, signature, photograph, or likeness" on goods, or for advertising or fund-raising purposes, constitutes infringement. In Experience, the court noted that while the statute only applies to goods sold in Washington, as written it applies to advertising or fund-raising anywhere. Experience at 1135. The statute also applies to those distributing infringing advertising within the state. The statute explicitly applies to both profit and non-profit endeavors. An infringement has not occurred if the owner gives written, oral, express or implied consent to the use of their identity.

      In Dale v. Coors Brewing Co., 113 Wash. App. 1017 (2002), the Court of Appeals of Washington held that held that a former employee of a beer company could not claim appropriation against her employer for using her likeness on a poster because she had consented to the use. It further held that because she did not demonstrate the value of her image, nor present evidence of her employer's financial gain from the infringement, "her claims would fail for lack of damages." However, in State v. Hinkle, 131 Wash. 86 (1924), an early case that did not discuss rights of publicity or the tort of appropriation in those terms, the court noted that the "law will presume" damage from the use of one's name.

      Statutory Exemptions

      Exemptions are codified at Wash. Rev. Code § 63.60.070. Publications related to "cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody" do not qualify as infringement. Publications on these subjects are protected even if they are used in advertising, "if it is clear that the principal purpose of the advertisement is to comment on such matter."

      In addition, the statute explicitly exempts certain uses, such as the following:

      • "Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies."
      • Various forms of media such as literature, theater, film, political campaigns, and online (see statute for complete list). Note that claiming endorsement by an individual in these contexts is not protected.
      • Advertisements for certain works listed as exempt in the statute.
      • Advertisements and packaging for various artistic works where the artist originally consented to incorporating their name.
      • Advertisements or sale of works signed by the individual.
      • Use of an identity as part of a description of something else, such as "a place, a legacy, a style, a theory, an ownership interest, or a party to a transaction or to accurately describe the goods or services of a party."
      • An "insignificant, de minimis, or incidental use" of an identity.

      An owner or employee of a platform in which infringing content was published as advertising is not liable, "unless the advertisement or solicitation was intended to promote the medium itself."

      Incorporating the use of multiple identities, as opposed to just one, is not a basis for exemption. However, the individuals who have been infringed upon cannot bring their claim as a class.

      Rights of the Deceased

      The right of publicity is freely assignable and descends to a deceased person's heirs as property. Wash. Rev. Code § 63.60.030.

      The right of publicity survives for ten years after the death of the individual. For "personalities," meaning celebrities and others whose identities carry commercial value, the rights survive for 75 years after death. Wash. Rev. Code Ann. § 63.60.040. A property right exists regardless of whether the right was commercially exploited while the individual was alive. § 63.60.030.

      While the statute suggests that its directives addressing survivability and assignability apply regardless of the deceased individual's home state (‘domicile'), this language has been held unconstitutional. In Experience, the United States District Court for the Western District of Washington declared that the WPRA's choice of law provisions violated the Due Process, Full Faith and Credit, and Commerce Clauses of the U.S. Constitution. The court held that, as the statute would apply Washington law in situations where Washington lacked "significant contact" to the events and parties involved, the statute's choice-of-law provisions were "arbitrary and unfair," and therefore violated the Due Process and Full Faith and Credit Clauses. Moreover, as the choice-of-law provisions would allow Washington to apply its statutes to commercial transactions taking place outside of the state, they also violated the Commerce Clause. As a result, the court held that because Jimi Hendrix died while domiciled in New York, Washington law did not apply and ultimately his right of publicity did not descend to his heirs.

      Damages and other remedies

      Damages and other remedies are described in Wash. Rev. Code § 63.60.060. Courts can grant injunctive relief on "reasonable terms." Courts can also order the destruction of infringing products and elements of their creation process, such as molds or negatives.

      Damages are calculated from the greater of $1,500 or the actual damages suffered by the plaintiff, plus the infringer's profits. To calculate profits, plaintiffs are required to prove defendant's revenues and defendants to prove their own deductible expenses. Each infringing work constitutes a single instance of infringement, regardless of how many copies were made or how many times the plaintiffs appear within.

      "Washington expressly prohibits punitive damages as a violation of public policy unless explicitly authorized by statute." Jongeward v. BNSF R. Co., 174 Wash. 2d 586, 594, 278 P.3d 157, 160 (2012). As the statute does not include a reference to punitive damages, they are not available.

      The statute notes states that "the remedies provided for in this section are cumulative and are in addition to any others provided for by law," suggesting that incremental common law damages may be assessed independently.

      THE COMMON LAW RIGHT

      Only one recent case explicitly addresses a plaintiff's common law tort of appropriation. In Aronson, the United States District Court for the Western District of Washington noted that while a common law cause of action existed for appropriation, it did not apply to "the publication of matters in the public interest" (see Defenses, below). Aronson at 1113.

      In Dale, the plaintiff brought a WPRA claim and a claim for "common law invasion of privacy," presumably for appropriation, although the opinion does not specify. The Court of Appeals of Washington held that both claims failed as the plaintiff had consented to the use of her image.

      These examples notwithstanding, there may be historical precedent for a successful common law right of publicity claim. In Hinkle, a case from 1924, the Supreme Court of Washington held that a political organization could not use the name of a politician against his will, and provided injunctive relief. The decision did not reference appropriation or a right of publicity by name.

      DEFENSES TO THE STATUTORY AND COMMON LAW RIGHTS

      In Aronson, a plaintiff depicted in a healthcare documentary claimed unauthorized misappropriation of his identity, citing both common law and the statute. The United States District Court for the Western District of Washington held that the documentary was both entitled to First Amendment Protection and exempted from the statute.

      In Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992), the United States District Court for the Western District of Washington suggested that Washington law would protect the producers of a play that incorporated a recreation of a performance by a deceased blues singer, "especially given the fact that the Washington State Constitution places an even higher value upon the principle of free speech than the Federal Constitution." While the court did not apply a constitutional analysis, it did note "the clear direction in which constitutional law points," and cited a New York case holding that free speech considerations trumped the post-mortem right of publicity. Note that this decision was written prior to the enactment of the WPRA.

      Although no Washington court has analyzed which statute of limitations applies to right of publicity claims in Washington, it is likely that the state's general three-year statute of limitations for injury to persons or property would apply. Wash. Rev. Code § 4.16.080(2).

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      Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity Claims

      While you can't always eliminate your legal risks when publishing private information about individuals or using peoples' names and likenesses, there are a number of ways you can minimize your risk of being on the receiving end of a publication of private facts, misappropriation, or right of publicity lawsuit. Some suggestions include:

      • Report on subjects and facts that are newsworthy: Reporting on topics and facts that are legitimately newsworthy typically will not invade the privacy of individuals portrayed in your work or unlawfully exploit their names or likenesses. It is not always easy to determine whether a particular topic or fact is newsworthy, but common sense can get you a long way. Avoid obscure and salacious details that don't have direct bearing on your topic, and don't use someone's photograph to illustrate your work unless they have some reasonable connection to the issue at hand. Following this latter advice can also help you avoid claims for defamation and false light.

      • Gather your information from publicly available sources whenever possible: If you rely on publicly available information, such as property records and public financial information, it is unlikely that your publication of that information will invade someone's privacy. Getting information from publicly available court records is an especially good idea because the First Amendment protects you when publishing truthful information obtained from court records and doing so may also protect you from defamation liability under the neutral report privilege, even if the information turns out to be false. You should avoid using advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that you could not have gotten otherwise. Gathering information in this way may expose you to liability for intrusion, and publishing material obtained through these methods is more likely to violate someone's privacy.

      • Be upfront about your intended use of information and photographs: When you interview or take photographs of someone, be clear with that person about how you intend to use the information gathered or the photographs taken. This will give the individual a chance to express any concerns. It is better for you to know about these concerns ahead of time, so that you can make an informed decision about whether to go ahead as planned. In addition, being upfront provides context for you to ask for consent, discussed immediately below.

      • Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to publication of private facts, misappropriation, and right of publicity claims. When interviewing someone or taking photographs for later publication, it is good practice to seek consent to use the information gathered and/or photographs taken on your website or blog. Get consent in writing whenever possible. There are two consent forms or "releases" that may be helpful -- a model release and an interview release. See Publication of Private Facts and Using the Name or Likeness of Another for details on these releases, samples of which are available on the Internet. If you decide to use one or more of these releases, you will need to customize it to fit you purposes and circumstances. Remember that minors cannot give consent on their own behalf, and that a consenting party generally may revoke consent any time prior to publication.

      Jurisdiction: 

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      Publishing the Statements and Content of Others

      If you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, you generally will be shielded from liability for defamatory statements made by your users and guests under section 230 of the Communications Decency Act ("Section 230"). This important federal law protects you from certain types of liability, including defamation, associated with the statements and other user-submitted content you publish on your site.

      Section 230 grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from liability so long as the information at issue is provided by a third-party. You will not lose this immunity even if you edit the content, whether for accuracy or civility, and you will be entitled to immunity so long as your edits do not substantially alter the meaning of the original statements. However, if you alter someone else's statement so that it becomes defamatory (e.g., changing the statement “Bob is not a murderer” to “Bob is a murderer”), you would be responsible for the content of the edited statement; and if it turns out to be untrue, you could be liable for defamation. In addition, if you add your own commentary along with the user-submitted content, you will only be shielded from liability for the material created by your user, not for your own statements. For more on this important protection, see the section on Immunity for Online Publishers Under the Communications Decency Act.

      Note that Section 230 does not shield you from liability for copyright infringement claims and other intellectual property claims. If you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law.   Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing.  We cover liability associated with copyright, trademark, and trade secrets in the Intellectual Property section of this legal guide.  For guidance on the procedures you should follow under the DMCA, see the section on Protecting Yourself Against Copyright Claims Based on User Content.

      Jurisdiction: 

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      Immunity for Online Publishers Under the Communications Decency Act

      This page provides some background on section 230 of the Communications Decency Act ("Section 230") and highlights the types of claims and online activities it covers as well as the types of activities that might fall outside Section 230's immunity provisions. 

      For general information on legal liability associated with publishing the content of others, see the section on Publishing the Statements and Content of Others in this guide.

      Background on Publisher and Distributor Liability

      Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.

      Distributor liability is much more limited. Newsstands, bookstores, and libraries are generally not held liable for the content of the material that they distribute. The concern is that it would be impossible for distributors to read every publication before they sell or distribute it, and that as a result, distributors would engage in excessive self-censorship. In addition, it would be very hard for distributors to know whether something is actionable defamation; after all, speech must be false to be defamatory.

      Not surprisingly, the first websites to be sued for defamation based on the statements of others argued that they were merely distributors, and not publishers, of the content on their sites. One of the first such cases was Cubby v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991). CompuServe provided subscribers with access to over 150 specialty electronic "forums" that were run by third parties. When CompuServe was sued over allegedly defamatory statements that appeared in the "Rumorville" forum, it argued that it should be treated like a distributor because it did not review the contents of the bulletin board before it appeared on CompuServe’s site. The court agreed and dismissed the case against CompuServe.

      Four years later, a New York state court came to the opposite conclusion when faced with a website that held itself out as a "family friendly" computer network. In Stratton Oakmont v. Prodigy, 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), the court held that because Prodigy was exercising editorial control over the messages that appeared on its bulletin boards through its content guidelines and software screening program, Prodigy was more like a "publisher" than a "distributor" and therefore fully liable for all of the content on its site.

      The perverse upshot of the CompuServe and Stratton decisions was that any effort by an online information provider to restrict or edit user-submitted content on its site faced a much higher risk of liability if it failed to eliminate all defamatory material than if it simply didn’t try to control or edit the content of third parties at all.

      The Communications Decency Act 

      This prompted Congress to pass the Communications Decency Act in 1996. The Act contains deceptively simple language under the heading "Protection for Good Samaritan blocking and screening of offensive material":

      No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

      Section 230 further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

      Websites Covered by Section 230 

      Is an "interactive computer service" some special type of website? No. For purposes of Section 230, an

      "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.

      Most courts have held that through these provisions, Congress granted interactive services of all types, including blogs, forums, and listservs, immunity from tort liability so long as the information is provided by a third party.

      As a result of Section 230, Internet publishers are treated differently from publishers in print, television, and radio. Let's look at these difference in more detail.

      Claims Covered by Section 230 

      Section 230 has most frequently been applied to bar defamation-based claims. In the typical case, a plaintiff who believes she has been defamed sues both the author of the statement and the website that provided a forum or otherwise passively hosted the material. Courts have held with virtual unanimity that such claims against a website are barred by Section 230.

      But immunity under Section 230 is not limited to defamation or speech-based torts. Courts have applied Section 230 immunity to bar claims such as invasion of privacy, misappropriation, and most recently in a case brought against MySpace (Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007)), a claim asserting that MySpace was negligent for failing to implement age verification procedures and to protect a fourteen-year old from sexual predators.

      However, Section 230 explicitly exempts from its coverage criminal law, communications privacy law, and "intellectual property claims." In interpreting these exclusions, courts agree that Congress meant to exclude federal intellectual property claims, such as copyright and trademark, but they disagree whether state-law intellectual property claims (or claims that arguably could be classified as intellectual property claims, such as the right of publicity) are also exempted from the broad immunity protection Section 230 provides.

      Finally, Section 230 does not immunize the actual creator of content. The author of a defamatory statement, whether he is a blogger, commenter, or anything else, remains just as responsible for his online statements as he would be for his offline statements.

      Online Activities Covered by Section 230 

      Courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, is immunized under Section 230. As one moves farther away from these basic functions, immunity may still exist, but the analysis becomes more fact-specific.  We analyze in detail the types of activites that are covered by Section 230 and those activities that fall outside its protections in the Online Activities Covered by Section 230 and Online Activities Not Covered by Section 230 pages of this legal guide. (We strongly advise that you review these pages if your activities extend beyond traditional editorial functions.)

      Summary 

      Section 230 of the Communications Decency Act grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of "mixed content" that is created jointly by the operator of the interactive service and a third party through significant editing of content or the shaping of content by submission forms and drop-downs.

      So what are the practical things you can take away from this guide? Here are five:

      1. If you passively host third-party content, you will be fully protected under Section 230.

      2. If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.

      3. If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.

      4. If you encourage or pay third-parties to create or submit content, you will not lose your immunity.

      5. If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal.

      To follow recent developments in the law concerning these immunity provisions, see our Section 230 summary page, where you will find background on Section 230, links to our legal guide materials, and feeds showing recent legal threats from our database, blog posts, and news. 

      Jurisdiction: 

      Subject Area: 

      Online Activities Covered by Section 230

      Note: For a general overview of Section 230 of the Communications Decency Act, see the page on Immunity for Online Publishers Under the Communications Decency Act in this legal guide.

      Courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, is immunized under Section 230. As one moves farther away from these basic functions, immunity may still exist, but the analysis becomes more fact-specific. While the case law addressing some of these activities is still developing, generally speaking Section 230 provides immunity for the following actions:

      • Screening objectionable content prior to publication. This is the quintessential activity that Section 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site.

      • Correcting, editing, or removing content. A website operator may take an active role in editing content, whether for accuracy or civility, and it will still be entitled to Section 230 immunity so long as the edits do not substantially alter the meaning of the content (i.e., make an otherwise non-defamatory statement defamatory). In an interesting case involving New Jersey politics, Stephen Moldow ran a website and forum where users criticized local elected officials. Muldow regularly deleted offensive messages, gave guidelines for posting, and edited and re-posted messages to remove obscenities. Although the plaintiffs argued the Moldow participated in the creation of the defamatory content and should therefore be held liable, the court concluded that Moldow’s activities were nothing more than the exercise of traditional editorial functions and thus immunized under Section 230. Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).

      • Selecting content for publication.   A website operator may select content for publication from a pool of user-submitted material without losing Section 230 immunity. In Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court granted immunity to a museum administrator who selected, edited, and then published on the museum's listerv and website emails he had personally received that claimed Batzel possessed paintings looted by the Nazis during WWII. The court held that Section 230 applied so long as a third-party "provided" the disputed email for publication.

      • Soliciting or encouraging users to submit content. Soliciting or encouraging users to submit content does not itself deprive a website operator of Section 230 immunity. For example, in Corbis Corporation v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004), the court immunized Amazon.com from Washington State Consumer Protection Act and tortious interference with business relations claims even though Amazon solicited and encouraged third parties to post images and other content on its site. But, an important U.S. Court of Appeals decision suggests that website operators may be held liable for encouraging users to submit unlawful content. See Fair  Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc) ("If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune."). The Roommates court's statements regarding encouragement are non-binding dicta, however, so later courts may not follow them.  In Best Western International, Inc. v. Furber, No. CV-06-1537 (D. Ariz. Sept. 5, 2008), the court said that creating a website that "impliedly suggests that visitors should make [defamatory statements]" does not strip an operator of Section 230 immunity. See slip op., at 16 (citing Roommates). 

      • Paying a third party to create or submit content. So long as the author of the material is not your employee (typically a question of state agency law), you will not lose Section 230 immunity if you pay for the content. One of the first cases to test this involved Matt Drudge, who in the late nineties received all of his income from AOL, which paid him for his popular gossip column and exercised "certain editorial rights with respect to the content." When Syndey Blumenthal sued Drudge and AOL for defamation, the court concluded that the payments to Drudge did not make him an AOL employee nor did they make AOL responsible for his postings and held that Section 230 immunized the service. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

      • Providing forms or drop-downs to facilitate user submission of content. Most courts have held that a website will not lose immunity if it facilitates the submission of user content through neutral forms and drop-downs. For example, in a case involving Matchmaker.com, a B-list actress sued the operator of the site after a user created a fake profile that listed her name and home address and indicated an interest in finding a sexual partner. The Ninth Circuit Court of Appeals held that the website was immune from the actress' claims of invasion of privacy, misappropriation, defamation, and negligence, noting that while "the questionnaire facilitated the expression of information by individual users[,] the selection of the content was left exclusively to the user." Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). (As discussed above, a recent decision by the Ninth Circuit casts some doubt on the Carafano decision. See Fair Housing Council v. Roommates.com.) In a similar case involving a publisher of business databases, an anonymous user used an entry form to submit false information about David Prickett and his wife indicating that they were in the adult entertainment and lingerie business. The court rejected the Pricketts' argument that infoUSA should lose its immunity because it helped create the information by supplying a form and drop-down boxes, concluding that it was the anonymous third party who actually made the choice and submitted the information. Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006).

      • Leaving content up after you have been notified that the material is defamatory. In order to gain the benefit of Section 230's immunity provisions, you do not have to remove content from your site if you receive notice that the material is defamatory. In the well-known Zeran v. America Online case, an AOL user posted messages purporting to offer for sale items that supported the Oklahoma City bombing and falsely included Kenneth Zeran’s contact information. Despite Zeran’s repeated demands that AOL take down the messages, they remained on the site until he filed a lawsuit. In an early test of Section 230's scope, the U.S. Court of Appeals for the Fourth Circuit held that Section 230 immunizes interactive computer services even if they have been notified that the material is defamatory. See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

        You might, however, lose the protection of Section 230 if you promise to remove content and then fail to do so. The Ninth Circuit found in Barnes v. Yahoo!, Inc., that Section 230 did not shield a site from a "promissory estoppel" claim. "Promissory estoppel" is a legal principle stating that if you promise to do something, you might be held responsible for the consequences of another's responsible reliance on your promise, even when you have no independent legal obligation to perform the promised act. In Barnes, Cecilia Barnes' ex-boyfriend had created fake profiles of her on a Yahoo! site, which contained nude photographs of Barnes and solicitations for sexual intercourse. After several months of sending requests to Yahoo! to remove the fake profiles, a Yahoo! employee contacted Ms. Barnes, asked her to re-send her previous statements, and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." Barnes claimed that she relied upon Yahoo!'s promise and did not take other measures to protect her reputation, but that Yahoo! never removed the profiles. Consistent with previous cases, the Ninth Circuit found that Section 230 protected Yahoo! from Barnes' claim of negligence in failing to remove the fake profiles. However, the court found that once Yahoo! promised to remove the fake profiles despite enjoying Section 230 immunity, it had waived the protection of Section 230 and could be responsible for the consequences of Barnes' reasonable reliance on that promise. The court noted, however, that a general monitoring policy--such as one articulated in a site's terms of service--would not be sufficient to create liability under a theory of promissory estoppel. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

      While most courts have held that Section 230 grants interactive computer services broad, expansive immunity, some courts have been willing to limit Section 230's immunity. We cover these cases in the Online Activities Not Covered by Section 230 page of this guide.

      Subject Area: 

      Online Activities Not Covered by Section 230

      While most courts have held that Section 230 grants interactive computer services broad, expansive immunity, this recognition often comes with some reluctance by the courts. Occasionally courts try to find ways around the broad immunity grant of Section 230. Early on, most courts that tried to hold service providers liable were trial courts that eventually found themselves reversed on appeal.

      Lately, however, some appellate courts have been willing to limit Section 230's immunity. This has primarily involved two types of activities by online publishers:

      • Editing of content that materially alters its meaning. If you edit content created by a third-party and those edits make an otherwise non-defamatory statement defamatory, you will likely lose your immunity under Section 230. Where this line is, however, remains unclear. Obviously, if you remove the word "not" from a sentence that reads "Jim Jones is not a murderer," you will have substantially altered the meaning of the sentence and made an otherwise non-defamatory statement defamatory.

      • Engaging with users through drop-down forms to create discriminatory content. In a case that appears to be in direct conflict with the Carafano decision mentioned above, the Ninth Circuit Court of Appeals held that Roommates.com was not immune from claims under the Fair Housing Act and related state laws because it "created or developed" the forms and answer choices that those seeking to use the service had to fill out. For example, anyone seeking a roommate had to provide information about themselves, such as “male” or “female,” and indicate who else lived in the house (e.g., “straight males,” “straight females,” “gay males,” or “lesbians”). All prospective users had to choose from a drop-down menu to indicate whether they were willing to live with “straight or gay males,” only “straight males, only “gay males,” or “no males” and had to make comparable selections pertaining to females. In a decision rejecting immunity under Section 230, the court reasoned that by requiring members to answer questions, Roommates.com was essentially causing users to make discriminatory statements. In addition, the court held, Roommates.com also bore liability because it permits users to search the profiles of other members with certain compatible preferences (e.g., search only for females with no children). Fair Housing of Council of San Fernando Valley v. Roommates.com, CV-04-56916 (9th Cir. 2008).
      • Failing to comply with promises to remove material. You might also lose the protection of Section 230 if you promise to remove content and then fail to do so. The Ninth Circuit found in Barnes v. Yahoo!, Inc., that Section 230 did not shield a site from a "promissory estoppel" claim. "Promissory estoppel" is a legal principle stating that if you promise to do something, you might be held responsible for the consequences of another's responsible reliance on your promise, even when you have no independent legal obligation to perform the promised act. In Barnes, Cecilia Barnes' ex-boyfriend had created fake profiles of her on a Yahoo! site, which contained nude photographs of Barnes and solicitations for sexual intercourse. After several months of sending requests to Yahoo! to remove the fake profiles, a Yahoo! employee contacted Ms. Barnes, asked her to re-send her previous statements, and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." Barnes claimed that she relied upon Yahoo!'s promise and did not take other measures to protect her reputation, but that Yahoo! never removed the profiles. Consistent with previous cases, the Ninth Circuit found that Section 230 protected Yahoo! from Barnes' claim of negligence in failing to remove the fake profiles. However, the court found that once Yahoo! promised to remove the fake profiles despite enjoying Section 230 immunity, it had waived the protection of Section 230 and could be responsible for the consequences of Barnes' reasonable reliance on that promise. The court noted, however, that a general monitoring policy--such as one articulated in a site's terms of service--would not be sufficient to create liability under a theory of promissory estoppel. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

      Note: For a general overview of Section 230 of the Communications Decency Act, see the page on Immunity for Online Publishers Under the Communications Decency Act in this legal guide.

      Subject Area: 

      Correcting or Retracting Your Work After Publication

      As you publish your work online you may want to correct things you have previously published. This may occur when someone contacts you and asks you to correct or retract your statements, or, you might decide on your own that something you've published needs to be changed. While the terms correction and retraction are sometimes used interchangeably, in general, a correction alerts your audience to factual errors that do not take away from your main point, while a retraction informs your audience of factual errors that impact the main point of the statements.

      Your willingness to correct past errors in your work will provide several benefits. First, it will make your work more accurate and reliable. This will increase your credibility, influence, and (hopefully) your page views.

      Second, it will likely diminish your liability for defamation and other potential legal claims. Keep in mind that correcting or retracting something you've previously published won't not necessarily mean that you will escape liability. Although a retraction might satisfy the person making the request, in some cases the requester may still sue you for defamation.

      This section will provide you with an overview of the laws governing retractions and provide some practical tips for handing retraction requests.

      Retraction Laws

      A growing number of states have laws -- both statutory and case law -- that require that a plaintiff must first request a retraction before they can recover certain types of damages in a defamation lawsuit. Keep in mind that each state defines what is required under its law and the procedures vary from state to state. You should consult your individual state guide for specifics on how the law operates in your jurisdiction.

      Generally speaking, states that have retraction laws require the following:

      1. A party that believes it has been defamed must request a retraction or service notice of the allegedly libelous statements before proceeding with a lawsuit

      2. The request or notice must be made within a reasonable period of time after publication of the allegedly defamatory statement; and

      3. If the publisher issues a "frank and full" retraction of defamatory statement, he or she will be entitled to a reduction in certain types of damages.

      Retraction laws differ in their impact on the damages available to a plaintiff. In the majority of states, a retraction prevents a plaintiff from recovering punitive damages unless the plaintiff can prove malice on the part of the defendant. Even if the plaintiff proves malice, a timely retraction can mitigate any punitive damages. For example, see the retraction statutes in Michigan, Ohio, Texas, and Virginia. And in one state, North Dakota, which has adopted the Uniform Correction Act, a plaintiff can only recover his out-of-pocket costs (i.e., direct economic losses) if the defendant has made a timely retraction. Some states without retraction statutes have similar principles in their common law. In these states, a defendant's retraction can be used to demonstrate an absence of malice in a defamation suit.

      Most retraction laws were created before the Internet made online publishing a reality. As a result, it is not clear whether many of these laws apply to online publishers. North Dakota is the only state whose retraction statute specifically mentions electronic publications. Although several other states' retraction statutes are broad enough to include online publications, relatively few courts have addressed the issue.

      This is likely a subject that will be determined by future courts and legislators, so consult your individual state guide for trends in your jurisdiction. For example, California's retraction statute, Cal. Civ. Code § 48a, applies to the publication of libel in a newspaper or slander by radio broadcast. Although the statute does not specifically state that it only applies to newspapers in print, two recent court decisions in California suggest that an online publication may be a "newspaper" if certain conditions are met. Refer to the section on California's retraction statute for details on these decisions.

      Even if your state's retraction statute does not apply to internet publications, publishing a retraction is often good practice if you realize that you have made a factual error. Often this will be enough to satisfy a potential plaintiff.

      Handling Retraction Requests

      Receiving a retraction request may be an indication of a pending lawsuit, and you should carefully consider your legal liability before publishing a retraction that admits liability. If you do not have a lawyer you can consult with, refer to the section on finding legal help for some guidance. A lawyer experienced in defamation law can help you assess the validity of the retraction request, discuss the potential for a defamation claim, determine which state's defamation and retraction law applies, and help you craft an appropriate retraction notice.

      Look closely at the specifics of the request and evaluate the accuracy of your work. If the retraction request contains specific, convincing details of factual errors, and your own grounds for making those factual statements appear shaky, a retraction might be a good idea to stave off a potential lawsuit and improve the reliability of your work. (Many potential defamation plaintiffs are satisfied with a correction and an apology because they do not want to draw yet more attention to the negative statements published about themselves.) On the other hand, if the retraction request is vague and you are confident that the information you published is accurate, the request may be an empty threat.

      Responding to a retraction request will vary with the nature of your statements and the details of your state's retraction statute or case law. Generally speaking, to be effective, a retraction must be a "frank and full" withdrawal of the defamatory accusation. Merely stating that the subject of the statement denies the accusation is not enough, nor is a weak, grudging, or half-hearted correction. Additionally, the retraction must appear in a manner comparable to that of the original publication and be disseminated to the same audience.

      If your state's law does not cover online work, tailor your retraction to match the guidelines established by your state's statute for the print media by publishing the retraction in an equal size and prominence to the original story, and reaching the same audience as the original. You should account for the different ways your audience accesses your content to make sure the retraction is sufficiently prominent. For example, if the statements are in your blog, and send out your blog posts in a weekly newsletter, you should publish the retraction in both your blog and newsletter. Also, if your site provides an RSS feed, attach the retraction to the feed to ensure that you reach the same audience.

      For additional information on what practical steps you should consider, see Practical Tips for Handling Requests to Correct or Remove Material.

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      Practical Tips for Handling Requests to Correct or Remove Material

      While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize your risk of being on the receiving end of an lawsuit if you publish incorrect information. Some suggestions include:

      • Have a correction/retraction policy: Your willingness to correct past errors in your work will provide a number of benefits. It will make your work more accurate and reliable which will increase your credibility and reduce the likelihood of your being sued. Additionally, you will have an established procedure to follow should you receive a request for a retraction or a threat of a lawsuit, which is especially important if you have a short timeframe in which to make a decision. Furthermore, while you cannot reduce your legal risks entirely, courts and juries may find that your retraction policy shows your good faith, which will benefit you in a defamation lawsuit. For sample policies, the Oklahoma Press Association's Legal Services Plan (LSP) Committee has two terrific suggestions for a Retraction Policy and a Corrections Policy to institute for your work.

      • If you receive a correction/retraction request, you should:
        1. Determine whether you are covered by your state's retraction law, if it has one. See the section on State Law: Retractions in our legal guide for help researching this question. If you are unsure, consider consulting an attorney or seeking other legal assistance.
        2. Check whether the statements personally involve the requester. If they do not, the requester may not be able to sue you for defamation. See the section on Who Can Sue for Defamation for more on this limitation.
        3. If the request is unclear, ask the requester to clarify in writing the specific factual errors in your published statements, provide documentation for his or her assertions of error, and explain what he wants you to do.
        4. Research the accuracy of any factual statements made by the requester.
        5. If your statements do in fact contain factual errors, consider printing a correction or a retraction that concisely states the correct facts.
        6. Make the retraction in a timely manner.
        7. Make the retraction clear. Do not bury the retraction, i.e., use the same size and font that you used for the original statements.
        8. If appropriate, think about showing the proposed retraction to the requester before publishing it to ensure that the retraction does not exacerbate your previously published factual errors.

      • Know your state's correction/retraction law: Find out whether your state has a retraction statute and take the time to understand the law and how it impacts you. For example, find out how publishing a retraction reduces your potential for damages. Pay close attention to the procedural steps outlined in the law, such as whether you have a time frame within which you must publish a retraction in order to avail yourself of any legal benefits.

      • Keep the names and contact information of a few media lawyers handy: Note the contact information for several media lawyers in your area so that you can quickly respond to a retraction request. You will have important decisions to make in what may be short time. If you need help searching for lawyers, use our section on finding legal help.

      • Do not ignore correction/retraction requests: Do not disregard a retraction request because a requester hasn't complied with the appropriate retraction law when making the request (e.g. a plaintiff serves you with a retraction request in twenty-one days instead of the statutory requirement of twenty days). If a retraction statute applies, it may provide you with a relatively easy way to forestall a defamation claim or limit your damages.

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      State Law: Retractions

      Each state has its own definition of what constitutes a retraction, and whether a plaintiff's damages are limited when a defendant publishes a retraction. Choose from the list below to determine whether your state has a retraction law, and if so, the procedure to follow if you wish to get the law's benefits. (Note that the guide does not include every state at this time.)

      Retraction Law in Arizona

      Note: This page covers information specific to Arizona and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Arizona has a retraction statute, A.R.S. § 12‑653.02, that applies to “an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast.” The statute does not specifically state whether it covers online publications. Because the statute does not explicitly require publication in physical as opposed to electronic form, if an online publication can be characterized as a “newspaper or magazine,” you may have a colorable argument that the retraction law applies. However, at least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

      Handling Requests to Remove or Retract Material in Arizona

      Under A.R.S. § 12‑653.02, a plaintiff must “serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected . . . within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.”

      If someone contacts you with a retraction or correction request, you should first determine whether a retraction or correction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction or correction is appropriate, you should issue a retraction or correction “in substantially as conspicuous a manner in the newspaper or magazine, or on the radio or television broadcasting station, as the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after service” of the demand for the correction. A.R.S. § 12‑653.03. If you follow these requirements, you can avail yourself of the statutory benefit of limiting potential defamation damages. See id.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. The statute provides that he or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages unless he or she can prove actual malice. A.R.S. § 12‑653.03. However, the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution in part, to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986). Therefore, the limits on liability might not apply only to punitive damages, and may not apply to the extent a plaintiff can prove actual damage to her reputation or actual emotional harm.

      The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

      Even if your online publishing activities do not fall within the scope of Arizona’s retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in California

      Note: This page covers information specific to California and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      California has a retraction statute, Cal. Civ. Code § 48a, that applies to the "publication of libel in a newspaper" or "slander by radio broadcast." Although the statute does not specifically state whether it covers online publications, two recent court decisions suggest that an online publisher may be covered by the statute if the publisher's main focus is the rapid dissemination of news.

      In the first case, a federal court interpreting California law observed that the legislature passed the retraction statute to protect publishing enterprises that engage "in the immediate dissemination of news," because such enterprises "cannot always check their sources for accuracy and their stories for inadvertent publication errors." Condit v. National Enquirer, Inc., 248 F. Supp. 2d 945, 955 (2002). The court concluded that the National Enquirer, which published the statements at issue in print and online, was not covered by the retraction statute because its primary focus was not the rapid dissemination of news. Thus the court held that the National Enquirer had time to verify the truth of the allegations before publishing the statements.

      The federal court's definition of "newspaper" in the National Enquirer case dovetails with an important state appellate court decision referring to "reporters" as persons gathering news for dissemination to the public online. O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006). In that case, Jason O'Grady operated an "online news magazine" about Apple in which he published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court concluded that the state shield law applied to O'Grady because he engaged in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." For more on the O'Grady case, see the Apple v. Does entry in the CMLP database. Taken together, the O'Grady and Condit decisions suggest that future courts may be willing to apply the state's retraction law to an online work depending on the nature of the publication.

      Although O'Grady involves California's shield law, both the O'Grady and the Condit decisions suggest that future courts may be willing to entertain the possibility that the state's retraction law applies to an online publication if the main focus of the publication is the rapid dissemination of news.

      Handling Requests to Remove or Retract Material in California

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the California retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the California retraction statute:

      • A plaintiff has twenty days after discovering an allegedly libelous statement to serve a request for retraction;
      • The request must be in writing and must specify the statements claimed to be libelous and demand that they be corrected; and
      • Once the publisher receives the retraction request, it has three weeks to publish a retraction in a manner that is "substantially as conspicuous" as the original published statements.

      If you comply with these procedures after receiving a retraction request (or the plaintiff fails to ask for a retraction as required under the statute) and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.

      Even if your online publishing activities do not fall within the scope of California's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Florida

      Note: This page covers information specific to Florida and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Florida has a retraction statute, Fla. Stat. § 770.02, that applies to a newspaper or periodical's "publication" of a libel, or a "broadcast" of a slander. Although the statute does not specifically state whether it covers online publications, the Florida Supreme Court's decision in Ross v. Gore, 48 So.2d 412 (Fla. 1950) suggests that an online publisher may be covered by the statute if the publisher's main focus is the dissemination of news.

      In Ross, the plaintiff Julian Ross brought suit against publisher R.H. Gore for an allegedly defamatory editorial published in Gore's newspaper, the Fort Lauderdale Daily News. Ross argued that the state's retraction statute violated Florida's constitution because it prevented him from collecting punitive damages. The court disagreed and noted that the retraction statute encouraged the free dissemination of "news" and "fair comment" in a short timeframe by not placing unreasonable restraints on the working news reporter or editor, thus preserving an important component of American democracy. In a later case, an appellate court concluded that the retraction statute applied to anyone writing for a newspaper, and based its reasoning on the need to protect the swift dissemination of news in order to inform the public of "pending matters while there is still time for public opinion to form and be felt." Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376 (Fla. Dist. Ct. App. 1997). Both the Ross and Mancini decisions suggest that future courts may be willing to apply Florida's retraction law to an online publication as long as the publication is dedicated to the rapid dissemination of news.

      Handling Requests to Remove or Retract Material in Florida

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Florida retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Florida retraction statute:

      • A plaintiff has five days to serve written notice identifying the article which contains the allegedly libelous statements and specifying the statements at issue. See Fla. Stat. § 770.01 for more information on the notice requirement.
      • Once the publisher receives the retraction request, the publisher must publish the correction, apology, or retraction within:
        • * ten days of notice, for a daily or weekly publication;
        * twenty days of notice, for a semimonthly publication;
        * forty-five days of notice, for a monthly publication; or
        * the next issue, for a work published "less frequently than monthly," as long as the plaintiff serves the notice no later than 45 days prior to such publication.
      • The publisher must make a full and fair correction, apology, or retraction by placing it "in as conspicuous place and type as [the] original article."

      If you comply with these procedures after receiving a retraction request and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.

      Even if your online publishing activities do not fall within the scope of Florida's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

       

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      Retraction Law in Georgia

      Note: This page covers information specific to Georgia and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Georgia has a retraction statute that applies to libel published in a "newspaper or other publication" ( Ga. Code Ann. § 51-5-11) and to a "broadcast" of a slander (Ga. Code Ann. § 51-5-12). (The links direct you to the Georgia Code hosted on Lexis Nexis. If you agree with the terms and conditions of the access, click "Ok." Scroll down and click on the circled plus symbol next to "Title 51," and then on the same symbol next to "Chapter 5" where you will find the sections of the Georgia Code mentioned on this page.)

      Although the statute does not specifically state whether it covers online publications, it defines the term "publication" as any communication made to any person other than the party libeled. Ga. Code Ann. § 51-5-3. This definition stems from the Supreme Court of Georgia's ruling in Mathis v. Cannon, 276 Ga. 16, 28 (2002). The Mathis case is interesting because the court applied the retraction statute to an online publication. The plaintiff, Thomas Cannon, brought suit over Bruce Mathis' allegedly libelous comments in an Internet chat room. Cannon argued that Mathis' failure to seek a retraction prevented Mathis from receiving punitive damages in accordance with the retraction statute; Mathis disagreed arguing that the retraction statute applied to newspapers and print media only and did not apply to statements made in an Internet chat room. The Georgia Supreme Court ruled that the retraction statute's use of the term "other publication" encompassed any communication made to a third person, regardless of its medium, because:

      It treats a publication for purposes of seeking a retraction the same as a publication for purposes of imposing liability. It acknowledges that the legislature extended the retraction defense originally created for newspapers, magazines, and periodicals to include newspapers and “other publications.” It encourages defamation victims to seek self-help, their first remedy, by “using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation.” It eliminates the difficult task of determining what is a “ written publication” and who is the “print media” at a time when any individual with a computer can become a publisher. It supports free speech by extending the same protection to the private individual who speaks on matters of public concern as newspapers and other members of the press now enjoy. In short, it strikes a balance in favor of “uninhibited, robust, and wide-open” debate in an age of communications when “anyone, anywhere in the world, with access to the Internet” can address a worldwide audience of readers in cyberspace.

      Thus, the Mathis decision allows the publisher of an online publication to benefit from the Georgia retraction statute as long as the publisher complies with the statute's requirements (discussed below).

      Handling Requests to Remove or Retract Material in Georgia

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Georgia retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Georgia retraction statute:

      • A plaintiff must request a retraction in writing at least seven days prior to the filing a defamation suit.
      • Once the publisher receives the retraction request, the publisher must publish the correction, apology, or retraction within seven days, or in the next regular issue of the publication following receipt of the request if the next regular issue was not published within seven days after receiving the request.
      • The publisher must correct and retract the statement in "as conspicuous and public a manner" as that of the original statement.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages. However, note that in a slander case, the plaintiff's retraction request of a defamatory statement has no bearing on whether the plaintiff's ability to recover punitive damages. See Ga. Code Ann. § 51-5-12.

      Even if your online publishing activities do not fall within the scope of Georgia's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Illinois

      The CMLP has not identified any relevant cases addressing the effect of a retraction in a defamation case in Illinois. If you know about a retraction case in Illinois, please contact us. You can find general information in the sections on Correcting or Retracting Your Work After Publication and Practical Tips for Handling Requests to Correct or Remove Material.

      Note that even in the absence of any relevant cases, you should still consider correcting or retracting an erroneous statement because your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Indiana

      Note: This page covers information specific to Indiana and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Indiana has a retraction statute, Ind. Code § 34-15-4-3, which applies to libel published in a "newspaper" or by a "news service." Although the statute does not specifically state whether it covers online publications, the court's decision in Christopher v. American News Co., 171 F.2d 275 (7th Cir. 1948) suggests that Indiana's retraction statute covers an online publisher if the publisher's primary focus is the reporting of factual occurrences.

      In the Christopher case, Louis Christopher brought suit against the American News Company (ANC) for allegedly libelous statements made in The Nation, a weekly magazine. ANC argued that because Christopher neglected to serve it with written notice of the allegedly libelous statements, he did not comply with the Indiana retraction statute and thus could not succeed in his libel suit. The court observed that ANC's argument assumed that The Nation was a "newspaper" and thus subject to Indiana's retraction law. The court disagreed with that assumption, explaining:

      Although The Nation does print some news items of general interest, articles, classified advertisements, and editorials, it is not a newspaper in the sense in which the term is commonly used. While the line between a newspaper and other periodicals is difficult to draw, it would seem that a possible distinction might be that a newspaper reports or claims to report occurrences factually, however the facts may be slanted or distorted, whereas a periodical such as The Nation reports facts not primarily for the interest in the factual narrative in and of itself but for some other possible significance.

      The court declined to decide whether The Nation was a newspaper stating that it was a question for a later time. However, the Christopher decision suggests that future courts may be willing to entertain the possibility that the state's retraction law applies to an online publication if the main focus of the publication is to report facts that make up a factual narrative with no other significance in mind.

      Handling Requests to Remove or Retract Material in Indiana 

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Indiana retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Indiana retraction statute:

      • A plaintiff must serve written notice at least:
      1. four days before filing the complaint against a news service;
      2. six days before filing the complaint against a daily newspaper; or
      3. eleven days before filing the complaint against a weekly newspaper.
      • The notice must specify the statements claimed to be libelous, and detail the true facts. See Ind. Code § 34-15-4-2.
      • Once the publisher receives the written notice, the publisher must publish the correction, apology, or retraction within:
        • 1. within three days by a news service;
        2. within five days, if the newspaper is a daily publication; or
        3. within ten days, if the newspaper is a weekly publication.
      • The publisher must make a full and fair retraction of the factual statements alleged to be false, placing it in as conspicuous a place and type as the original statement.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.

      Even if your online publishing activities do not fall within the scope of Indiana's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Massachusetts

      Note: This page covers information specific to Massachusetts and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Massachusetts has a retraction statute, Mass. Gen. Laws ch. 231, § 93, that applies to the publication of libel.  The retraction statute bars a plaintiff from recovering punitive and exemplary damages in a defamation suit, and allows the court or jury to consider a defendant's retraction as a factor in mitigating an award of general damages to the plaintiff.  The statute states in its entirety:

      Where the defendant in an action for libel, at any time after the publication of the libel hereinafter referred to, either before or after such action is brought, but before the answer is required to be filed therein, gives written notice to the plaintiff or to his attorney of his intention to publish a retraction of the libel, accompanied by a copy of the retraction which he intends to publish, and the retraction is published, he may prove such publication, and, if the plaintiff does not accept the offer of retraction, the defendant may prove such nonacceptance in mitigation of damages. If within a reasonable time after receiving notice in writing from the plaintiff that he claims to be libelled the defendant makes such offer and publishes a reasonable retraction, and such offer is not accepted, he may prove that the alleged libel was published in good faith and without actual malice, and, unless the proof is successfully rebutted, the plaintiff shall recover only for any actual damage sustained. In no action of slander or libel shall exemplary or punitive damages be allowed, whether because of actual malice or want of good faith or for any other reason. Proof of actual malice shall not enhance the damages recoverable for injury to the plaintiff’s reputation.

      Although the statute doesn't state whether it applies to online publishers, the statute's use of the  phrase "publication of libel" without limitation would seem to suggest that an online publisher is covered by the Massachusetts retraction statute.

      Handling Requests to Remove or Retract Material in Massachusetts

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Massachusetts retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Massachusetts retraction statute, a publisher should send written notice to the plaintiff of:

      • the publisher's intention to publish a retraction of the libel;
      • a copy of the retraction intended to be published; and
      • the published retraction

      at any time before the plaintiff files a suit against the publisher, or, by the time of the publisher has to file a response to the plaintiff's lawsuit.

      If you comply with this procedure after receiving a retraction request and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited to recovering his or her actual economic losses only.

      Even in the unlikely event that your online publishing activities do not fall within the scope of Massachusetts's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Michigan

      Note: This page covers information specific to Michigan and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Michigan has a retraction statute, Mich. Comp. Laws 600.2911, that applies to libel "based on a radio or television broadcast," libel "based on a publication," and "other libel." Although the statute does not specifically state whether it covers online publications, the statute does not require that a libel based on publication be published in a specific medium. Additionally, the statute's inclusion of "other libel" gives rise to the possibility that future courts may apply the state's retraction law to an online publication.

      Handling Requests to Remove or Retract Material in Michigan 

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Michigan retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Michigan retraction statute:

      • Before filing a lawsuit, a plaintiff must give notice to the publisher of the statements claimed to be libelous;
      • Once the publisher receives the notice, it has a reasonable time to publish a retraction; and
      • The retraction must be published or communicated in a manner as close to the original statements, e.g. the same size type, in the same editions, and as far as possible, in substantially the same position as the original libel.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited. Under the retraction statute, she will be able to recover only for her actual economic losses. You will be able to show your good faith and the jury will be able to consider your retraction in the mitigation of exemplary or punitive damages. Note that under Michigan libel law, "exemplary and punitive damages" are a species of "actual" damages, and are awarded to compensate the plaintiff for "the increased injury to feelings directly attributable to the defendant's fault in publishing the libel." Peisner v. Detroit Free Press, Inc., 421 Mich. 125, 131 (Mich. 1984) (emphasis in original).

      Even if your online publishing activities do not fall within the scope of Michigan's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in New Jersey

      Note: This page covers information specific to New Jersey and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      New Jersey has a retraction statute, N.J. Stat. § 2A:43-2, that applies to "the owner, manager, editor, publisher or reporter of any newspaper, magazine, periodical, serial or other publication." Although the statute does not specifically state whether it covers online publications, it does not require that the article be published in a specific medium (e.g. print only). Thus, if your role can be characterized as the owner, manager, editor, publisher or reporter of an online "newspaper, magazine, periodical, serial or other publication," you have a colorable argument that the retraction law applies you. 

      Handling Requests to Remove or Retract Material in New Jersey

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the New Jersey retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the New Jersey statute:

      • A plaintiff must request a retraction in writing;
      • Once the publisher receives the retraction request, the publisher must publish the retraction within a "reasonable time"; and
      • The publisher must correct and retract the statement in "as public a manner" as that of the original statement.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover punitive damages.

      Even if your online publishing activities do not fall within the scope of New Jersey's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in New York

      Note: This page covers information specific to New York and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      New York has a retraction statute, N.Y. Civ. Rights Law § 78, that applies to the publication of libelous statements. Although the statute is silent on what constitutes publication, New York's Court of Appeals has broadly defined to signify any communication of a defamatory statement to a third party. See Ostrowe v. Lee, 175 NE 505 (N.Y. 1931) for the court's rationale. The Court of Appeal's expansive definition in Ostrowe suggests that a future court will likely find that the retraction statute covers an online publication.

      Handling Requests to Remove or Retract Material in New York

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should publish one so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the N.Y. Civ. Rights Law § 78, you can use your retraction, and even your offer to publish a retraction, to show mitigating circumstances for the jury to consider in determining damages. The jury may use the retraction to reduce punitive damages but not compensatory damages.

      Even if your online publishing activities do not fall within the scope of New York's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in North Carolina

      Note: This page covers information specific to North Carolina and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      North Carolina has a retraction statute, N.C. Gen. Stat. § 99-2, that applies to libelous statements published in an "article" of a "newspaper or periodical." Although the statute does not specifically state whether it covers online articles, it also does not require that the article be published in a specific medium. Thus, if your online work can be characterized as a newspaper or periodical, you have a colorable argument that the retraction law applies to your online work.

      Handling Requests to Remove or Retract Material in North Carolina 

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the North Carolina retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the North Carolina retraction statute:

      • A plaintiff must serve notice informing the publisher of the false statements;
      • Once the publisher receives notice, the publisher must publish the correction, apology, or retraction within ten days; and
      • The publisher must make a full and fair correction and apology and must clearly refer to and admit the falsity of the original statements. See Roth v. Greensboro News Co., 6 S.E.2d 882 (N.C. 1940) for more information.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.

      Even if your online publishing activities do not fall within the scope of North Carolina's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Ohio

      Note: This page covers information specific to Ohio and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Ohio has a retraction statute, Ohio Rev. Code § 2739.14, which applies to a "newspaper company" that prints, publishes, or circulates a false statement in its "newspaper, magazine, or other periodical publication." Under § 11 of the statute, a newspaper company refers to "[a]ny person, firm, partnership, voluntary association, joint-stock association, or corporation, wherever organized or incorporated, engaged in the business of printing or publishing a newspaper, magazine, or other periodical sold or offered for sale in this state." (Emphasis added.) Because the statute does not state that the false statement must be made in a specific medium (e.g. print only), a future court may be persuaded to find that the retraction law applies to a publisher's online periodical publication that is sold or offered for sale in Ohio.

      Handling Requests to Remove or Retract Material in Ohio 

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should follow the procedures outlined in the Ohio retraction statute so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      Under the Ohio retraction statute:

      • A plaintiff must send a demand letter informing the publisher of the false statements and detail the true statements;
      • If the plaintiff swears to the veracity of the statements, the publisher must "print, publish, and circulate" the corrected statements provided by the plaintiff in the next regular issue of the periodical or within forty-eight hours; and
      • The statements cannot be altered, and must be published in a manner as similar as possible to the original article (e.g. it must be published in "the same color of ink, from like type, with headlines of equal prominence," and placed in the same position as the original article.)

      If you comply with these procedures after receiving a retraction request and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will likely be limited. Under the retraction statute, you will be able to use your retraction to show your good faith and the jury will be able to consider your retraction as a mitigating circumstance to reduce damages.

      Even if your online publishing activities do not fall within the scope of Ohio's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Pennsylvania

      Note: This page covers information specific to Pennsylvania and should be read in conjunction with Correcting or Retracting Your Work After Publication, which has general information applicable to all states.

      While no court has spoken directly on the issue of retractions and online publications, you have a strong argument that a jury can consider your retraction for the purpose of mitigation of damages under Pennsylvania commonlaw.

      Although Pennsylvania does not have a retraction statute, the Supreme Court of Pennsylvania considered the effect of a retraction in Wharen v. Dershuck, 264 Pa. 562 (Pa. 1919). In that case, the plantiff George Warren sued the publisher of the newspaper The Plain Speaker over an article describing Wharen's behavior as a mail carrier. The jury returned a verdict for the defendant-publisher, and in his appeal Wharen argued that the judge's instructions to the jury were in error. These instructions included the judge's statement that while the jury could not consider the defendant's retraction for purposes of liability, the jury could consider it to mitigate the damages awarded to the plaintiff. The Supreme Court of Pennsylvania found no reversible error and upheld the jury instructions.

      Two other Pennsylvania cases, Duh v. Bethlehem's Globe Publishing Co. (No. 1), 48 Pa. D. & C.2d 268 (Pa.Com.Pl. 1969) and Rossi v. McDonnell, 18 Pa. D. & C.2d 550 (Pa.Com.Pl. 1959), similarly held that a defendant in a libel suit is entitled to offer his or her retraction to a jury to mitigate damages. While it is difficult to predict how a court will rule on whether the above standard applies to online publications, you have a colorable argument that you can offer your retraction to a jury for the purpose of mitigation of damages under Pennsylvania commonlaw.

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, issuing a retraction may mitigate your damages in accordance with the Wharen decision.

      Even if your online publishing activities do not fall within the scope of the Wharen decision, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. Correcting errors will also diminish the likelihood of your being sued in the first place, by placating a potential plaintiff. Furthermore, courts and juries may find that a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Texas

      Note: This page covers information specific to Texas and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Texas has a retraction statute, Tex. Civ. Prac. & Rem. Code § 73.003, that applies to libel "expressed in written or other graphic form." The statute does not require that the publication has to be in a specific medium (e.g. print only), which leaves open the possibility that the statute may cover an online publication. See Tex. Civ. Prac. & Rem. Code § 73.001.

      Handling Requests to Remove or Retract Material in Texas

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should publish one so that you can avail yourself of the statutory benefit of limiting potential defamation damages.

      If you issue a "public apology, correction, or retraction" of a false statement and you are found to be liable for defamation, the plaintiff's ability to recover damages from you will be limited. Under the Texas retraction statute, you will be able to use your retraction to show your good faith and the jury will be able to consider your retraction in determining the "extent and source" of the plaintiff's actual (economic) damages and to mitigate exemplary damages, which will benefit you in a defamation suit.

      Even if your online publishing activities do not fall within the scope of Texas' retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith.

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      Retraction Law in Virginia

      Note: This page covers information specific to Virginia and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Virginia has a retraction statute, Va. Code § 8.01-48, that applies to "the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical" who face a libel suit for an "article, statement or other matter contained in any such newspaper, magazine or periodical." Although the statute does not specifically state whether it covers online publications, it does not require that the article be published in a specific medium (e.g. print only). Thus, if your role can be characterized as the publisher, owner, editor, reporter or employee of an online newspaper, magazine or periodical, you have a colorable argument that the retraction law applies you.

      Handling Requests to Remove or Retract Material in Virginia

      If someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should issue an "apology or retraction" with "reasonable promptness and fairness" so that you can avail yourself of the statutory benefit of limiting potential defamation damages. See Va. Code § 8.01-48.

      If you comply with these procedures after receiving a retraction request and you are found to be liable for libel, the plaintiff's ability to recover damages from you will be limited. He or she will be able to recover only for his or her actual economic losses and will not be able to recover general damages (e.g., loss of reputation generally) or punitive damages.

      Even if your online publishing activities do not fall within the scope of Virginia's retraction statute, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in Washington

      Note: This page covers information specific to Washington and should be read in conjunction with the general section on retraction in the section on Correcting or Retracting Your Work After Publication which has additional information applicable to all states.

      Although Washington does not have a retraction statute, the Supreme Court of Washington decided one case, Coffman v. Spokane Chronicle Pub. Co., 117 P. 596 (Wash. 1911), involving the effect of a publisher's offer to retract its statements in a libel case. In the Coffman case, the plaintiffs Elizabeth and Thomas Coffman brought a defamation suit against the Spokane Chronicle for statements made in the a series of articles published in the Chronicle about their marriage. The jury returned a verdict in favor of the Coffmans, and the Spokane Chronicle appealed the jury verdict in favor of the Coffmans, arguing in part that they "had been at all times ready and willing to publish any fair, reasonable, and truthful article or correction which the [plaintiffs] ... might desire" and that the plaintiffs neglected to request such retraction. The court disagreed, noting that duty falls on a newspaper to issue a "full and complete retraction" if it has libeled a person, and that the newspaper can offer the retraction in mitigation of damages.

      It is difficult to predict how a court will rule on whether the above standard applies to online publications given that the state only has the Coffman case from 1911 and no retraction statute. However, if someone contacts you with a retraction request, you should first determine whether a retraction is warranted; review the steps under the handling a retraction request section of this guide for help in making this assessment. If you determine that a retraction is appropriate, you should issue one so that you can use it to argue that your damages should be mitigated in accordance with the Coffman decision.

      Even if your online publishing activities do not fall within the scope of the Coffman decision, your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Retraction Law in the District of Columbia

      The CMLP has not identified any relevant cases addressing the effect of a retraction in a defamation case in the District of Columbia. If you know about a retraction case in the District of Columbia, please contact us. You can find general information in the sections on Correcting or Retracting Your Work After Publication and Practical Tips for Handling Requests to Correct or Remove Material.

      Note that even in the absence of any relevant cases, you should still consider correcting or retracting an erroneous statement because your willingness to correct past errors in your work will provide several benefits. It will make your work more accurate and reliable, which will increase your credibility, influence, and (hopefully) your page views. It will also diminish the likelihood of your being sued in the first place, as it might placate the potential plaintiff. Furthermore, courts and juries may find a retraction shows your good faith, which will benefit you in a defamation suit.

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      Publishing Product or Service Endorsements

      In October 2009, the Federal Trade Commission issued "Guides Concerning the Use of Endorsements and Testimonials in Advertising" (the "Guidelines") that may impose a disclosure requirement on bloggers and social media users who review or otherwise write about products and services. The Guidelines, which officially went into effect on December 1, 2009, call for online publishers to disclose "material connections" they have with a company whose products or services they "endorse." Without the legal jargon, this means that bloggers and social media users must disclose their relationship with a company when they are being paid or otherwise compensated by the company to comment favorably on its products or services. The Guidelines also say that bloggers may be held liable for making misleading or unsubstantiated claims about a product or service.

      The Guidelines have provoked quite a bit of anxiety and consternation, but there's little that can't be handled with some common sense and transparency.  The Guidelines impact a relatively narrow category of online publishing activities that can be construed as "endorsements," like writing reviews or otherwise commenting favorably on products or services. And, putting aside a few gray areas, the Guidelines require disclosure of only relatively established relationships with companies—like getting paid, participating in a network marketing program, or receiving a steady stream of freebies. On top of that, the Guidelines are easy to comply with, and they require nothing more than upholding good journalistic standards and prinicples, namely independence and transparency. Finally, the FTC staff have made numerous public statements indicating that they are more interested in educating than suing bloggers.

      Background

      The Federal Trade Commission (“FTC”) is a federal government agency concerned with consumer protection and competitive business practices. The FTC enforces the FTC Act, which prohibits deceptive business practices, including deceptive advertising.

      The Guidelines are the FTC's interpretations of the FTC Act—they tell the public what the FTC thinks deceptive advertising is in the area of testimonials and endorsements. The Guidelines do not have independent force of law; they are not "rules"; and there is no automatic fine for violating them.

      If the FTC staff think that someone has violated the Guidelines, the agency may commence an enforcement action against the alleged wrongdoer for violating the FTC Act. In that enforcement action, the FTC would have the burden of proving that the challenged conduct violates the FTC Act, and the outcome would be reviewable in federal court. The primary remedy in an FTC enforcement action is a cease-and-desist order commanding the defendant to stop violating the FTC Act. Fines are only available in particularly egregious cases or when the defendant violates the cease-and-desist order.

      Disclosure Requirements Only Apply to "Endorsements"

      Bloggers and users of social media only need to disclose their relationship with a company when they "endorse" a product of service. Accordingly, for the vast majority of online publishers, the Guidelines probably won't come into play much. But if you publish reviews or otherwise regularly discuss products and services, the Guidelines could impact your work, and you should have a sense of what constitutes an "endorsement."

      The Guidelines define an "endorsement" as "any advertising message . . . that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identicial to those of the sponsoring advertiser." Guides, § 255.0(b).

      Not all online discussion of product attributes or consumer experiences will qualify as an "endorsement." The FTC explains in its commentary on the Guidelines: "the fundamental question is whether, viewed objectively, the relationship between the advertiser and the speaker is such that the speaker's statement can be considered 'sponsored' by the advertiser and therefore an 'advertising message.'" Federal Register Notice, at 8.

      The FTC will look at the following factors to determine whether a message conveying positive statements about a product or service is an "endorsement":

      • whether the speaker is compensated by the advertiser or its agent;
      • whether the product or service in question was provided by free by the advertiser;
      • the terms of any agreement;
      • the length of the relationship;
      • the previous receipt of products or services from the same or similar advertisers, or the likelihood of future receipt of such products or services; and
      • the value of the items or services received.

      Federal Register Notice, at 9. That's a lot of factors, but most of the FTC's examples in the Guidelines and its public statements suggest that it is primarily concerned with those getting paid in cash, those participating in network marketing programs, and those receiving a steady stream of products from a company or group of companies.

      For instance, in an FTC instructional video (embedded below), Mary Engle, Associate Director of the FTC Bureau of Consumer Protection, answers the question "what do the Enforcement Guides mean for bloggers." In doing so, she focuses on these categories of relationship:

      If you are one of those bloggers whose in a marketing program with an advertiser and you're being paid to blog about a product, or you're receiving a steady stream of products from a company, then you need to disclose that relationship you have with the company.

       

      Rebecca Tushnet's notes from a December 1 panel discussion, which included Stacey Ferguson of the FTC's Division of Advertising Practices, provide a little more detail, but basically the same gist:

      Disclosure of connection: when does a consumer become an endorser? When the consumer is sponsored by the advertiser, looked at objectively. Are they acting independently, or are they part of the advertiser’s marketing campaign? Definitely: Explicit understanding; cash payments; additional perks; network marketing programs; network advertising agencies; commissions. It depends: Continuous free merchandise; value of the product or service; links to where the product can be purchased.

      Note: The FTC is also cracking down on astroturfing by company employees, which makes sense because there is certainly a "material connection" between employer and employee that readers would like to know about in evaluating the credibility of the message.

      The pages below dig into some of the most important issues surrounding the Guidelines and their application to online publishing activities:

      For additional information, be sure to check out the resources on FTC's website.

      Subject Area: 

      Complying With the FTC's Disclosure Requirements

      If you have a relationship with a company that needs to be disclosed, then you should do so in a "clear and conspicuous" manner. Don't put it in small print or hide it away on a backwater page on your website. You want readers to easily notice the disclosure, and you want them to understand it. So make the disclosure clear and unambiguous so it can be understood by the average reader.

      The form of the disclosure can be very simple. In a second FTC instructional video (embedded below), FTC staffer Mary Engle gives some examples of good disclosures:

      • "ABC Company gave me this product to try."
      • "XYZ Company sent me to their theme park to try it out for a day."

       

      In March 2013, the FTC provided further information about how to make effective online disclosures in a guidance document entitled ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." Among the recommendations made in the new document are the following:

      • Disclosures in multimedia presentation should be presented in the same medium as the content to which they relate: audio disclosures for audio claims, written disclosures for written claims, et cetera. Necessary disclosures should be as prominent as the claims to which they relate; fleeting disclosures in a video clip are unlikely to be considered effective.
      • Disclosures should not be "buried" in Terms of Service or other lengthy contractual or contract-like content. According to the FTC, "[e]ven if such agreements may be sufficient for contractual or other purposes, disclosures that are necessary to prevent deception or unfairness should not be relegated to them. Similarly, simply because consumers click that they 'agree' to a term or condition, does not make the disclosure clear and conspicuous."
      • Disclosures relating to blog posts must be placed in such a manner that readers are not likely to be distracted before viewing it. If a blog post contains links that might lead a reader away from the blogger's website, the disclosure should appear before those links.
      • Hyperlinks may be used to connect readers to disclosures, but only in certain circumstances. Where the disclosure is "integral" to an advertisement (for example, disclosing that a necklace offered for sale is costume jewelry), it must appear in the text of the ad. Where hyperlinks are permissible, they must be conspicuous, clearly inform the reader about the nature of the linked disclosure, and lead directly to the disclosure in a location where it is prominently displayed. The use of a clickable symbol or icon to lead to required disclosures is unlikely to suffice, unless the symbol/icon is widely understood by consumers to indicate that there is important additional information beyond the link.
      • "Space-constrained" content (think Twitter) is not exempt from disclosure requirements. Disclosures may sometimes be made on a website linked from a tweet rather than in the tweet itself (for example, where a tweet indicates that a new product review has been posted on a linked website). However, where a tweet itself contains an endorsement of a product or service that requires a disclosure, the person tweeting should consider whether a reader might purchase a mentioned product in a brick-and-mortar store rather than proceed to a linked website where the necessary disclosures appear. In such cases, the disclosure should appear in the tweet itself.  A disclosure in one tweet is unlikely to be considered sufficient with respect to endorsements of a product in other tweets, because the tweet in which the disclosure appears may be separated by other users' comments from the tweet in which the endorsement appears.
      • The use of hashtags (such as #spon or #ad) to identify sponsored content in Twitter posts is unlikely to be considered effective by the FTC, unless the hashtag is clear on its face and widely understood to convey the necessary information.

      Here are some additional suggestions from Stacey Ferguson of the FTC (as reported on Rebecca Tushnet's blog) on how to handle disclosure in various other media:

      • Video-sharing sites: put the disclosure in the video content and the description alongside.
      • Social networks: put the disclosure in status updates and descriptions of photos/videos and create a "discosures and relationships" section on your profile.

      If you're unsure about your disclosure, consider the purpose of the disclosure requirement. The FTC is concerned about statements that look like personal recommendations or neutral reviews but are in fact advertisements. Think about your readers. Are you giving them the information they need to evaluate the credibility of your message in a way that they are both likely to see and to understand?

      Subject Area: 

      Avoiding Misleading and Unsubstantiated Claims

      The FTC Guidelines state that, besides disclosing "material connections" with advertisers, endorsements "must reflect the honest opinions, findings, beliefs, or experience of the endorser" and "may not convey any express or implied representation that would be deceptive if made directly by the advertiser." Guides, §255.1(a).  In plain language, this means you should not make false, misleading, or unsubstantiated claims about a product or service you write about in return for compensation from the company.

      In case that's not clear, the Guidelines provide the following example of a misleading and unsubstantiated claim:

      Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger’s endorsement.  The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services.

      In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

      Guides, at 4-5. Common sense should take you a long way here: stick to your own experience with a product or service and don't make any factual claims you can't support. If you're unsure about something, contact the company to see if it can provide you with guidance and/or factual support.

      And don't worry too much! The FTC is not going to go after a blogger or social media user for stating an "incorrect' opinion or getting minor facts wrong. The FTC's commentary explains that, in the example above, the blogger is not "giv[ing] her opinion about subjective product characteristics (e.g., that she liked the fragrance) or relat[ing] her own experience with it (the example does not say that she had eczema). Rather, she made a blanket claim that the product 'cures' eczema without having any substantiation for that claim." Federal Register Notice, at 15-16. The FTC will no doubt choose to focus its investigative energy on the most egregious misrepresentations.

      Subject Area: 

      Is the FTC Really Going To Sue Bloggers?

      Many are asking whether the FTC is really going to sue bloggers and other users of social media. The short answer is "probably not," but no one can say for sure. In a series of recent interviews with Internet publications, FTC staff have bent over backwards to downplay the risks to bloggers and, by implication, other users of social media. For example:

      • CNET interview with Richard Cleland, Associate Director of the FTC's Advertising Division: "As a practical matter, we don't have the resources to look at 500,000 blogs," Cleland said. "We don't even have the resources to monitor a thousand blogs. And if somebody reports violations then we might look at individual cases, but in the bigger picture, we think that we have a reason to believe that if bloggers understand the circumstances under which a disclosure should be made, that they'll be able to make the disclosure. Right now we're trying to focus on education."
      • Fast Company with Richard Cleland: "That $11,000 fine is not true. Worst-case scenario, someone receives a warning, refuses to comply, followed by a serious product defect; we would institute a proceeding with a cease-and-desist order and mandate compliance with the law. To the extent that I have seen and heard, people are not objecting to the disclosure requirements but to the fear of penalty if they inadvertently make a mistake. That's the thing I don't think people need to be concerned about. There's no monetary penalty, in terms of the first violation, even in the worst case. Our approach is going to be educational, particularly with bloggers. We're focusing on the advertisers: What kind of education are you providing them, are you monitoring the bloggers and whether what they're saying is true?"
      That's just a sampling of what's out there. A third FTC instructional video (embedded below) sends largely the same message:

      "Is the FTC planning to sue bloggers? Well, let me put it this way. That is not why we issued this guidance. We issued this guidance to make it clear that everybody should be playing by the same rules, whether you're a professional reviewer or an amateur reviewer. Just be up front about the connections you have and any conflict of interest you might have with the company."

      As heartening as these messages may be, they don't mean it is OK to simply disregard the Guidelines. In the end, it is up to the discretion of the FTC staff whether or not to bring an enforcement action, and none of these public statements bind them in any formal way. One of the fiercest objections to the Guidelines has been that they are written broadly to encompass all sorts of conduct, leaving to the FTC the decision whether to go after technical violators. On the other hand, some level of prosecutorial/agency discretion is common to all U.S. law enforcement.

      Subject Area: 

      Some Gray Areas Surrounding the FTC's Disclosure Requirements

      On this page, we look at some areas where it is not entirely clear how the FTC's Guidelines will apply to online publishing activities:

      The Occasional Freebie. Perhaps the most troubling gray area is whether you have to disclose your "relationship" with a company that sends you a freebie once in a while in anticipation of your writing a review about it, but with whom you have no other formal ties. It is not clear how the FTC will deal with this situation.

      One thing we know is that when the random, occasional freebie becomes a steady, predictable stream of free products, then it's time to disclose the relationship. The Blog of LegalTimes reports:

      Engle did acknowledge a substantial gray area when it comes to blogging. If a blogger received an occasional free sample and happened to write something positive, she said, “that’s not something we think would change the expectation of the audience,” and might not require disclosure. But if at some point it became a steady stream of freebies, then disclosure would be called for. “It’s not burdensome and it’s not hard,” she said.

      Just how many free items will trigger the obligation is difficult to say. FTC staffer Stacey Ferguson has some good advice: "When in doubt, disclose freebies."

      Besides the frequency of receipt, another important factor is the value of the freebie. The more expensive the item, the more likely your receipt of it requires disclosure. Example 7 under § 255.5 of the Guidelines reinforces this view:

      A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.

      Guides, at 12 (emphasis added). The blogger in the example doesn't have an established arrangement with the gaming company; he doesn't get paid in cash, and it doesn't look like we're dealing with a "steady stream" of freebies. But it's also not a purely isolated occasion—the hypothetical carefully notes that the manufacture has sent gaming systems in the past (how many times, we don't know). Here, what seems to drive the disclosure requirement is the value of the gaming system. It's worth a lot of money and could conceivably be enough to skew the blogger's review. A comment by Stacey Ferguson in the December 1 panel discussion supports this view:

      Free products should be disclosed because they can be considered compensation on a fact-specific basis. Depends on the value of the product—is it enough to push the consumer towards a positive review?

      Just how expensive an items needs to be is not clear. Repeat the mantra: "When in doubt, disclose freebies."

      Affiliate Links. The Guidelines don't say a whole lot about this, but some statements by FTC staff suggest that the agency believes that affiliate links may require disclosure of the blogger or website operator's relationship with the affiliate sponsor.

      Given this uncertainty, it might be a good idea to disclose your participation in an affiliate program on a "disclosures and relationships" page or section. The fashion blog Deep Glamour provides a sardonic example of how to handle the disclosure:

      DeepGlamour is an Amazon affiliate. Virginia Postrel receives a percentage of the purchase price on anything you buy through one of our Amazon links, including purchases you make while on Amazon that we did not link directly to.

      The Federal Trade Commission demands that we tell you this—they think you're idiots and are violating the First Amendment with their regulation of what bloggers publish—but it's also a friendly reminder to Support DeepGlamour by starting all your Amazon shopping here.

      Something more concise, like “Disclosure: Compensated Affiliate” will also suffice on a link-by-link basis, according to the Affilliate Marketing Blog.

      No disclosure is required for ordinary advertisements that clearly look like ads. See Karen Brunet: New FTC Rules and Guidelines - How Does This Apply to Advertising?

      Negative Reviews. While it is not 100% clear that disclosure is only required for positive reviews, common sense and the plain meaning of the words "endorsement" and "advertising message" suggest that the FTC won't be paying attention to good-faith negative reviews. Employees of a competitor who engage in astroturfing could run afoul of the FTC Act with negative content, however.

      Subject Area: 

      Dealing with Foreign Legal Threats

      Online publishers should realize that Internet content is available worldwide, and may lead to legal problems outside the United States. While this tends to primarily be an issue for big companies (with deep pockets), it's still a matter of concern for small organizations and even individuals, as illustrated by the French prosecution of an NYU law professor in 2010 for hosting an allegedly defamatory book review.

      Because the focus of CMLP's legal guide is U.S. law, this section cannot explain in detail the legal issues that online content may run into abroad. But it is important to realize that foreign laws can differ—sometimes significantly—from American law.

      Examples of Legal Issues

      Some examples of legal issues that online publishers may run into in countries outside the United States include the following. (Note: these are just examples; they do not constitute a comprehensive list.)
      • Different standards for libel: Countries have differing standards for defamation, many of which differ significantly from standards in the United States. A 2005 summary of defamation laws in 55 member nations of the Organization for Security and Co-operation in Europe (OSCE) is available here.

      • Falsity assumed: Under existing law in England and Wales, which Parliament may change in the near future, defamatory statements are presumed to be false. In other words, the defendant who made the statement must prove that it is true. This is the opposite of the United States, where the plaintiff—the subject of the statement—generally must prove that the statement is false as an element of the defamation claim, at least in cases involving matters of public concern or a public figure.

      • Criminal defamation: In many countries, defamation is a criminal offense, punishable by fines and/or imprisonment. Some countries have "insult laws," which make it a criminal offense to "insult" the honor or dignity of public officials and/or symbols or institutions of the state. The advocacy group Article 19 maintains global maps of criminal defamation laws; as of 2010, more than 140 nations had criminal defamation provisions, and in several nations prosecutions under these laws are common. (Some states in the U.S. also have criminal defamation laws. Prosecutions are relatively infrequent, but have apparently increased with the rise of the Internet.)

      • Laws prohibiting hate speech: Austria, France and Germany have laws prohibiting Nazi propoganda and display of Nazi symbols, while laws in several other countries ban speech denying the Holocaust, and other historical genocides and crimes against humanity. Several nations also have laws criminalizing speech that incites hatred on the basis of chacteristics such as race, religion, ethnicity, and national origin. (The American Enterprise Institute published a report in 2006 summarizing and criticizing such laws in Europe.) There have been a number of cases in which nations with such laws have sought to use them to extradite their citizens from abroad to face criminal charges for web content.

      • Different notions of privacy: Many countries have laws that are more protective of personal privacy than the laws in the United States. These laws are more restrictive about what publishers can legally disclose about others. For example, in 2004 a British newspaper was found to have violated the privacy rights of model Naomi Campbell by publishing a photograph of her leaving a drug treatment clinic on a public sidewalk. See Campbell v. MGN Limited, [2004] UKHL 22.

      • Restrictions on publication: Other nations may have laws that restrict publication of material that is permissible in the United States. For example, the Canadian Supreme Court recently upheld that nation's statute allowing a criminal defendant to demand that judges prohibit coverage of bail hearings. Toronto Star Newspapers Ltd. v. Canada [2010] S.C.C. 21 (upholding Criminal Code, R.S.C. ch. C‑46, sec. 517 (1985)).  Such a ban on coverage would be unconstitutional in the U.S.
      • Copyright: 164 nations, including the United States, have signed the international Berne Convention, agreeing to recognize copyrights from other nations that are parties to the agreement. So a copyright in a foreign country may be enforced in a United States court, even if the material is not under copyright in the United States. Also, in some countries other people may be able to use material that is copryrighted in the United States and posted to a U.S.-based web site in ways that would not be legal in the United States. A basic summary of copyright laws of 20 nations is available here.

      Responding to a Foreign Claim

      If you post something online that upsets someone in another country, that person may use several means to contact you about their complaint: sending a cease-and-desist letter or e-mail; filing a lawsuit; and/or sending a subpoena. If a lawsuit is filed against you, it could be in a U.S. court or in a foreign court. Either way, your initial response should be the same: Don't panic, but also don't delay.

      One big issue when it comes to a lawsuit or threat involving a foreign court is jurisdiction. Jurisdiction refers to the power of the foreign court to hear the case and exert power over you. In some countries, the fact that the material at issue is posted on the Internet and available worldwide—including in the country in question—is enough for the courts of that country to have jurisdiction over a case, at least according to that country's laws.

      For example, in 2002 the Australia Supreme Court held that an American company, Dow Jones, Inc., could be sued in Australia over an article that appeared in the printed version and on the web site of its publication Barron's, which was accessible online in Australia. Dow Jones & Company Inc. v. Gutnick, [2002] HCA 56 (Austl.). In 2010, Germany's highest court overruled two lower courts to hold that The New York Times could be sued in that country by a German citizen over a 2001 article available online, citing the article's references to Germany and the 14,484 registered users of the Times website with German addresses. VI ZR 23/09 (BGHZ March 2010). (Translated press release here.)

      As an example of how complicated this can get, in August 2009 an American-based computer game company sued a British blogger in an Australian court. The company dropped the case after a second day of initial hearings in the case.

      A judgment against you in a foreign country could remain dormant until you enter the country at a later time, for whatever reason. Therefore, you should consider whether a foreign threat you are facing comes from a country where you may want to travel in the future.

      In order to respond to a threat of legal action in a foreign country, even if only to challenge the court's jurisdiction, you either have to handle the situation yourself, find non-profit legal help, or hire a lawyer in that country. In any case, the general advice on our Finding Legal Help still applies, but you will need to deal with the added complexity presented by a foreign legal system. (Sorry, our Online Media Legal Network is currently limited to U.S. lawyers.)

      While an exhaustive list is beyond the scope of this guide, here are some resources that may help you find legal help abroad:

      Choosing to Not Respond to a Foreign Claim

      Alternately, if you do not have any assets, employees, or other interests in and do not plan to travel to the country from which the legal threat originates, you may choose to not to respond to the foreign legal action. This is not an action to take lightly, and it is not the same as ignoring the threat. In most cases, the decision to not respond to a foreign legal threat should be made in consultation with an attorney.

      This was the course of action taken byAmerican author Rachel Ehrenfeld, who was sued in England by Saudi businessman Khalid bin Mahfouz over statements in her book Funding Evil. Ehrenfeld decided to not respond to bin Mahfouz's lawsuit. An English court held her in "default" in 2005, enjoined publication of the book in Great Britain, and eventually awarded £110,000 in compensation and costs to bin Mahfouz and his two sons. bin Mahfouz v. Ehrenfeld, No. HQ04X01988 (Q.B. judgment May 3, 2005).

      Ehrenfeld then sued bin Mahfouz in a federal court in New York, seeking a declaration that any English libel judgment against her could not be enforced in the United States consistent with the First Amendment. The court dismissed Ehrenfeld's lawsuit on the grounds that bin Mahfouz had not actually tried to enforce the judgment in the United States, and the dismissal was affirmed by the Second Circuit Court of Appeals. Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007) (certifying jurisdictional question to New York Court of Appeals); Ehrenfeld v. Mahfouz, 518 F.3d 102 (2nd Cir. 2008) (affirming dismissal of case after New York Court of Appeals answered the certified question, 9 N.Y. 3rd 501 (2007)).

      Ehrenfeld and her allies then launched an effort to pass statutes barring the enforcement of foreign libel judgments that do not comport with First Amendment standards. Such statutes, dubbed "libel tourism" laws, have been adopted in California (Cal. Civ. Pro. §§ 1716, 1717); Florida (Fla. Stat. §§ 55.605 (2)(h); 55.6055); Illinois (735 Ill. Comp. Stat. 5/12-621 (b)(7), 5/2-209(b-5)); and New York (N.Y. C.P.L.R. §§ 302(d); 5304 (b)(8)).  A federal libel tourism law was enacted in 2010 (28 USC § 4101-4105).

      Libel tourism stautes like these would make it harder for a foreign plaintiff to enforce a foreign judgment against you in the U.S. Even without a libel tourism statute, U.S. courts may not recognize a foreign judgment as valid if you have no ties to the foreign country other than that your content can be accessed there. But, there is no guarantee.

      Again, choosing not to respond to a foreign lawsuit is a decision that must not be made lightly and should in most cases be done in consultation with an attorney.

      Jurisdiction: 

      Subject Area: 

      Unique Content: Special Risks

      Creating a legal guide for online and citizen media is a significant undertaking, so it is no surprise that we haven't been able to cover every topic we think should be covered.  This page collects some "special situations" that we think warrant additional discussion in the guide. If you have suggestions for additional subjects or would like to help us work on the guide, please let us know.

      Some of the topics we are working on, or hope to address in the future, include:

      1. Employee Blogs

        1. Disclosure of Trade Secrets
        2. Disclosure of Financial Information
        3. Other Issues

      2. Covering Politics and Elections

        1. Documenting the Vote 2012: Photography and Videography at Polling Places
        2. Covering Political Campaigns
        3. Seeking to Influence Elections
        4. Campaign Finance Law

      3. Publishing Information For or About Children

        1. Juvenile Proceedings
        2. Child Online Protection Act

      4. Publishing Reviews and Consumer Ratings of Restaurants, Services, People, Etc.

        1. Publishing Your Own Reviews
        2. Publishing the Reviews and Ratings of Others

       

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