A couple of journalists did, in fact, note that the alleged “climate strategy memo” looked different from the other files, but they did so only after Heartland said it was a fake. So it seems that sites like DeSmogBlog, The Huffington Post, and Think Progress are on fairly safe ground. Indeed, in a letter to Heartland, the general counsel for the Center for American Progress, which runs ThinkProgress, asserted that contents of the fake document closely matched those of the other documents and cited Bartnicki in defense of publishing them.
What about Gleick’s own potential liability or—as a thought experiment—the liability a reporter might face were he or she to pull the same stunt in an effort to acquire and publish the documents directly? Without all the facts, it’s impossible to make definitive statements. The legal experts consulted for this article emphasized that they did not want to speculate about whether or not Gleick had broken any law, and that they could only make general comments about the tactics he used.
Some have called Gleick a whistleblower, which doesn’t fit the defintion. “The odds are pretty good that it does not fall under the category of whistleblower protection,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. “As a general rule, certainly with federal laws, whistleblower protection protects people that are employed in a company and make disclosures about irregularities within the company from retaliation like demotion of firing.”
As for a reporter who might have wanted to obtain and publish the information directly, the first thing to understand is that journalists have no greater and no lesser protection under the law than anyone else, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. The 1991 Supreme Court case Cohen v. Cowles Media Co. established that if a journalist breaks a law, the First Amendment won’t protect him or her. So, the debate about whether or not Gleick—or anyone else in a similar situation—is a journalist is moot.
That said, there is no law that prohibits individuals from misrepresenting themselves except in very specific situations (many states have, for instance, made it a crime to impersonate a police officer). Neither, to the best of Levine’s knowledge, is there a law that says it is a crime or a civil wrong for somebody to impersonate another for the purpose of getting information to disseminate to third parties, whether it’s the public or the press, except in very specific situations. (Customer information kept by financial institutions and telephone companies have special protections, for instance, and a variety of states are considering “ag-gag” laws that prohibit undercover photo and videography at livestock farms.)
Usually, the issue is whether or not misrepresentation leads to the violation of some other law, such as defamation. There are a variety of ways for that to happen, legal experts agreed. One of the obvious possible claims would be fraud. There are federal and state criminal statutes against mail and wire fraud, but prosecutors would be unlikely to pursue small matters involving something like Heartland’s purloined documents. The bigger concern is a civil suit.
On that front, the definition of fraud varies from state to state, but the burden for a plaintiff often comes down to proving some type of damages. In the Food Lion case, a district court denied the grocery chain’s fraud claims because it couldn’t prove that it had suffered any type of financial loss due to ABC’s deceit. The court found the ABC reporters guilty of a breach of loyalty to their employer, and of trespassing. With regard to trespassing, however, it’s important to note that the court ruled that Food Lion’s consent to their presence as employees was nullified not because the reporters misrepresented themselves (everyone who fudged a job application would break the law, in that case), but rather because of the breach of duty.