This question expands on a question I asked the other day (Can a reporter or journalist record your phone conversation without your notification?).

Imagine the following scenario: A reporter working for a newspaper in Washington State calls a candidate for public office while he’s sleeping, waking him up.

Half-conscious, the candidate answers the phone but doesn’t at first understand who he’s talking to or what the conversation is about. When he becomes fully conscious, he hangs up.

Later, the reporter publishes an article allegedly divulging information extracted from the conversation, which he describes as an “interview.” However, the candidate has no memory of saying what the reporter claims he said. Nor would he say such a thing under ordinary circumstances, because it isn’t true. In fact, he normally wouldn’t even talk to a media “rat” to begin with.

The candidate would like answers to the following questions:

  1. Was the conversation recorded?
  2. If so, how was the candidate notified?
  3. Did the candidate give the reporter permission to divulge the conversation in a published article?

In addition, the candidate would also like a copy of the recording, so he can hear for himself what was said - and whether he exhibited obviously slurred speech that should have suggested that he wasn’t fully conscious.

Is there a way to force the reporter (or the newspaper he works for) to disclose this information, short of shelling out money for an attorney?


There is no legal means to force a newspaper to reveal anything that doesn't involve a lawyer, or doing for yourself exactly those things that a lawyer would do (pro se is always an option). For example, newspapers don't maintain "public records", so they can't be effortlessly and compelled to provide such records. If a recording was made illegally, the county prosecutor might be willing to prosecute that crime, but there would have to be reasonable evidence that a recording was made and it was made illegally (which is the issue in questions, so there is no such evidence). Or, the aggrieved party could sue for violating the right to privacy. In that case, the paper could be compelled to turn over the recording, if it exists. Since it is required by law that the recording announcement be included in the recording, there is no question as to how the person was notified. This presupposes that the interview was recorded, and that the paper does not deny that there was a recording.

If the statements attributed to the candidate are negative and false, the candidate can sue the paper for defamation. In that case, when the case comes to court, the paper would need to provide evidence that the statements are true (that the candidate did say those things). That could be via the reporter's notes, or via the recording if recorded. That should answer the questions about recording. So, there are certain possibilities for getting an answer to the question, but no guarantee.

  • 1
    In order to compel production of the alleged recording, wouldn't the plaintiff likewise have to have some sort of evidence that a recording was made? Just having a suspicion or guess that the defendants recorded him wouldn't suffice, I wouldn't think. Aug 4 '20 at 6:01
  • 1
    Also, if the recording was legal, couldn't the reporter just disclose the initial seconds of the recording, where the candidate is notified that he's being recorded? That would shoot down the candidate's case, but without giving him the information that he really wants. Aug 4 '20 at 6:03
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    Regarding defamation, I was recently learning about NY Times v. Sullivan - isn't the burden of proof on the candidate to show that the claim (that he made the unflattering statements) is false and that it was made with actual malice? Aug 4 '20 at 6:05
  • @NateEldredge that’s not how discovery works - you ask, they give (or get the judge to rule they don’t have to,
    – Dale M
    Aug 4 '20 at 9:24

For item 3, the candidate wants to know "Did the candidate give the reporter permission to divulge the conversation in a published article?"

A journalist doesn't need a subject's permission to report what they've said, especially if the subject is a candidate for public office. Even if the subject says something is "off the record," it's not "off the record" unless the reporter agrees in advance. They are welcome to decline to comment and/or hang up.

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