Washington Times reporter Susan Ferrechio went to the Marcus Garvey Public Charter School, a controversial semi-public school in Washington, D.C., to interview principal Mary Anigbo in December 1996.
When they met, Anigbo was upset that Ferrechio had spoken to a student who escorted the reporter to the office, and suspected the reporter of stealing a notepad from the principal’s office. A scuffle ensued, the notepad – which Ferrechio said was hers, and contained notes for a story on public schools she had been working on for months – was physically taken from her by the school officials, and she was ousted from the building. When she later returned with police and a Times photographer, another fight broke out as Anigbo and school employees tried to stop the photographer from taking pictures and attacked officers who intervened.
Anigbo and the other employees were variously charged with assault on the reporter, photographer, and two police officers and theft of the notebook. They were convicted on the misdemeanor charges in August 1997.
Government officials at all levels sometimes try to keep journalists from a story, from the President who issues an executive order limiting media access to air disaster scenes, to a school principal who assaults a reporter over a notebook and a talk with a student.
Although the First Amendment’s provisions on freedom of speech and of the press have long protected the right to publish and broadcast the news, and the U.S. Supreme Court has said newsgathering enjoys some First Amendment protection as well, the high court has never clearly defined the scope of that protection, nor of the restrictions that may be placed upon reporters’ activities.
As a result, police officers have randomly restricted reporters’ access to murder scenes, other crime scenes, fires and auto accidents. Owners may have reporters ejected from private property. And federal and state governments increasingly restrict press access to election polling places and prisons.
This guidebook is intended to give reporters a “plan of attack” when access to newsworthy events has been unreasonably denied. It will discuss legal restrictions that may be placed on reporters, as well as what to do if the restrictions seem unreasonable.
However, this guide is only a starting point. For help in specific situations where access is denied, consult an attorney or call the Reporters Committee’s Hotline at (800) 336-4243 for assistance.
(C) 1997 The Reporters Committee for Freedom of the Press. All Rights Reserved. This material may not be reproduced without the written permission of the Reporters Committee. Printed copies of this guide are available through our online order form.
DO YOU HAVE A RIGHT TO GATHER NEWS?
In a 1972 case concerning a subpoena seeking to force a reporter to reveal confidential sources, the Supreme Court stated that “Without some protection for seeking out news, freedom of the press could be eviscerated.” In separate opinions, three dissenting justices also advocated special newsgathering privileges for the media.
They argued that: “A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. . . . News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised.”
Unfortunately, the dissenting view did not carry the day, and the plurality opinion stated that “newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” (Branzburg v. Hayes)
In two subsequent cases involving media access to prisons, the Supreme Court declined to extend this access right any further. The majority of the court concluded that as long as restrictions treat the media and public equally, they raise no constitutional questions. (Pell v. Procunier; Saxbe v. Washington Post)
More recently, however, the U.S. Supreme Court’s rulings that the public and media have a First Amendment right to attend criminal judicial proceedings have reinforced the idea that newsgathering is constitutionally protected. One concurring justice pointed out that “an arbitrary interference with access to important information is an abridgement of the press freedom protected by the First Amendment. . . . The First Amendment protects the public and the press from abridgement of their right of access to information about the operation of their government.” Access to such information promotes free discussion of public affairs and the media act as “agents” for the public in gathering and disseminating such material. (Richmond Newspapers Inc. v. Virginia)
In another case, the Court held that because the right to publish news depends on the ability of the media to gather information, restrictions on the right to gather news diminish the right to publish. (Globe Newspaper Co. v. Superior Court)
Some lower courts have granted the media special newsgathering privileges in specific situations where the public does not have access. But most of these decisions fail to clearly define the scope and nature of these privileges. (See, e.g., Westinghouse Broadcasting Co. v. National Transportation Safety Board
ACCESS TO PUBLIC PROPERTY
A number of states passed laws restricting exit polling outside of voting places after the 1980 presidential election, during which broadcasters announced election results before the polls had closed in western states.
Newsworthy events often occur in public places such as streets, sidewalks or parks. Since these places are open to the public and few restrictions are placed on the activities that take place in them, they are considered public forums.
Although governments generally may not limit or deny access to public forums, they may impose reasonable “time, place and manner” restrictions on expressive activity on such property. To comply with the First Amendment, such restrictions must satisfy a three-part test: they must be content neutral, narrowly tailored to serve a significant government interest, and must leave open alternative channels of communication. The Supreme Court has used this test at least since 1939 (Hague v. CIO), and reaffirmed its application as recently as 1983. (U.S. v. Grace).
Although the cases addressed by the courts typically involved political demonstrations, they can be analogized to journalists. If the media have a right of access equal to the public’s, and the public has a broad right of access to a place, then reporters will have equal access to gather news in that place.
Election day exit polls: In the wake of the 1980 president election, in which broadcasters announced Ronald Reagan’s victory over incumbent Jimmy Carter before the polls closed in western states, many states passed laws limiting reporters’ access to voters and poll workers within specified distances from polling places. The most extreme was Hawaii’s statute forbidding conducting exit polls within 1,000 feet of voting places.
Courts in many of these states have declared such laws unconstitutional. The U.S. Court of Appeals in San Francisco (9th Cir.) struck down a Washington state law prohibiting exit polls within 300 feet of voting places, rejecting the state’s argument that it was a reasonable means of preserving order and preventing harassment of voters.
The panel ruled that the law unconstitutionally restricted media access to areas which have traditionally been considered public forum property. In a concurring opinion, one judge said the law also violated the media’s First Amendment right of access to information crucial to the political process. (The Daily Herald Co. v. Munro)
A judge struck down Minnesota’s exit poll statute, which forbade asking voters about ballot issues, as a content-based restriction on speech about government affairs that violated the First Amendment. (CBS Inc. v. Growe)
Georgia’s prohibition on exit polling within 250 feet of voting places was unconstitutional because it prohibited such activities even if they did not disrupt voting on public forum property, a federal judge ruled in 1988. The court limited enforcement of the statute to 25 feet (National Broadcasting Co. v. Cleland)
In 1989, Florida’s Supreme Court struck down a state prohibition on exit polling within 50 feet of voting places. The court said officials had not substantiated claims that exit polling disrupted voting. But the court ruled that the state could bar journalists from entering polling places to ask questions or take photographs in order to prevent disruption. (CBS Inc. v. Smith)
Some states still enforce broad exit poll bans. Nebraska maintains a 100-foot restriction on polling. In Oklahoma, a pollster must obtain written authorization from the Secretary of the State Election Board no later than the Wednesday before the election in order to poll within 300 feet. Even with this identification, the pollster must remain 50 feet from the voting place and is restricted to written polling materials. No recording devices or oral interviews are allowed. (26 Okla.Stat. Ann. § 4-115)
NOT ALL PUBLIC PROPERTY IS A PUBLIC FORUM
Many states have restricted media access to prisoners, often citing what they describe as the “celebrity” status that inmates like Charles Manson, shown here with Geraldo Rivera, receive.
The fact that property is owned by the government does not necessarily make it a public forum. Courts allow greater restriction on speech and access on property that traditionally has not been open for general public use, such as courthouses, jails, government offices, city halls and public schools. This type of property is often referred to as non-public-forum public property.
Government buildings and facilities: In general, governments may exclude the news media from property that is publicly owned if authorities can show that media access would interfere with the normal operations of the facility. The Supreme Court has held that the government, “no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.” (Adderley v. Florida)
In 1983, the U.S. Supreme Court ruled that a federal law barring protesters from public sidewalks surrounding the Supreme Court was unconstitutional. It said, however, that the law could be applied to restrict picketing and leafletting on the Supreme Court grounds as well as in the building itself. Although the property is publicly owned, it has not been traditionally held open for the use of the public for expressive activities. (U.S. v. Grace)
Following the bombing of the federal building in Oklahoma City, the General Services Administration issued a policy restricting media access to federal buildings. The directive instructed employees in federal buildings in New York, part of New Jersey, Puerto Rico and the Virgin Islands to deny access to the media unless they were accompanied by staff escorts. A federal District Court judge in Rochester, N.Y. criticized the policy as “singl[ing] out members of the media as deserving heightened security concerns whereas members of the public may enter the building and proceed to any of the offices in the building without restraint.” The policy was changed to allow unescorted reporters access to the buildings; however, the restriction was left in place for photographers and camera crews.
Schools: Access to public schools may also pose special problems. Generally, public school property is treated as non-public-forum public property, and regulations that restrict access but are designed to lessen interference with normal school activities would be constitutionally permissible.
No state laws bar the media from school grounds outright, but individual school districts may have adopted regulations limiting access to school property.
In June 1996 the California Attorney General’s office issued an advisory opinion giving school administrators the authority to deny media access to school grounds. Ruling that “the constitutional right to gather information is not without limit,” the Attorney General authorized exclusion of the media if their presence “would interfere with peaceful conduct of the activities of the school.” (A.G. Op. No. 95-509)
The opinion was unusual, considering that California law specifically exempts the news media from the definition of “outsiders” who must check with administrators before visiting schools. (Calif. Penal Code §§ 627.1, .2; Calif. Evidence Code § 1070)
Even if access to school grounds is permitted, reporting activities may still be limited. For example, when a congressional candidate spoke at a high school in Auburn, N.Y., the school’s principal allowed reporters to cover the candidate’s speech but prohibited them from photographing or interviewing individual students.
Restrictions may also extend to activities that take place outside school grounds. When a reporter attempted to interview students after a high school graduation ceremony that took place in the Forum building in Harrisburg, Pa., police arrested him for refusing to leave the building. Though the police later claimed that school officials had told them to bar the press from the event, charges against the reporter were dropped.
Airports: In 1992 the Supreme Court ruled that public airport terminals are not public forums. Airports have not historically been made available for speech activity. Therefore, a “reasonable” regulation of expression is constitutional, as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view, the Court said. (International Society for Krishna Consciousness, Inc. v. Lee)
What constitutes a “reasonable” regulation concerning an airport is unclear. In cases involving the placement of newsracks in airports, a total ban on newsracks in a South Carolina airport and a requirement that newspapers in the Atlanta airport during the 1996 Olympics be sold only from city-owned, advertising-covered newsracks were both found to be unreasonable. (Multimedia Publishing Co. v. Greenville-Spartanburg Airport District; The Atlanta Journal and Constitution v. Atlanta Department of Aviation)
The lesson from these cases might be that generally, regulations that create blanket restrictions without promoting some type of public interest are more likely to be found unreasonable.
Prisons: Important news events often happen behind bars, and prison inmates themselves may be news makers. Reporters often need to visit federal and state prisons to interview inmates and observe prison conditions or executions. But although the public has a limited right of access to the prison system, the U.S. Supreme Court has consistently ruled that the media have no right to insist on interviewing specific inmates.
Although inmates do not lose all their First Amendment rights, prisons may place some limits on their speech in the interests of prison administration and security. Similarly, the Supreme Court has upheld restrictions on journalists’ access based on prison officials’ arguments that media attention allowed some prisoners to gain “a disproportionate degree of notoriety and influence among their fellow inmates” and that such notoriety engendered “hostility and resentment among inmates who were refused interview privileges.” Journalists, the court held, have “no right of access beyond that afforded the general public.” (Pell v. Procunier; Saxbe v. Washington Post)
But even though media access may not be constitutionally guaranteed, state law or prison policy may allow reporters to interview specific inmates. Before assuming your state does not allow access, call the state department of corrections (or the Bureau of Prisons for access to a federal facility) to find the specific requirements for and limitations on interviews and visits.
Policies vary widely from state to state. Missouri imposed a temporary ban on press access in 1996. Once the ban was lifted, new regulations allowed each inmate to receive one visit per month from the media. Requests for additional interviews must be submitted to prison directors for evaluation regarding “security considerations.” (Sidebottom v. Schriro)
Corrections officials have considerable latitude in deciding whether a particular reporter may interview a particular inmate. In Virginia, for example, the policy of the corrections department is to consider reporters’ requests on a case-by-case basis. Access is entirely at the discretion of the head of the state prison system. (6 VAC 15-30-1840)
Furthermore, some states are attempting to grant different levels of access to different “types” of media. For example, Indiana’s special provisions for news media access do not apply to “non-news media,” including “independent film makers, writers for non-news magazines and others.” (Admin. Proc. 00-03-101)
The U.S. Court of Appeals in Atlanta (11th Cir.) ruled in 1988 that federal prison officials could deny an independent television producer access to a maximum security prison under a regulation stating that “representatives of the news media” are only those who are employees of news organizations. (Jersawitz v. Hanberry)
The court said that the regulation reflected a legitimate government interest in maintaining security.
If officials refuse an interview request, reporters still may be able to communicate with inmates by having their names added to the list of persons who may call, visit or write to a specific inmate. Regulations vary on how large the list can be and how long it may take to be added to it. For example, the William Donaldson Correctional Facility in Birmingham, Ala., only allows 10 people on each inmate’s call list. Changes to the list can be made only once every six months, impractical for a journalist with a deadline. (Pope v. Hightower)
Inmates in federal prisons can add names four times a year, and can have up to 30 names on their lists. However, wardens can bar additions to the list for the sake of “security or good order.” (28 C.F.R. § 540). At one time, the Bureau of Prisons considered requiring potential outside contacts to undergo a background check before being added to a prisoner’s phone list, but that rule was not included in the final version of the regulations. (Bureau of Prisons Proposed Regulation, 58 Fed. Reg. 39096-97)
Prisons may also elect to offer no special access at all. For example, Arizona excludes all visitors except lawyers, family and friends. (DMO 89-21)
Pennsylvania grants no special access right to members of the media. Reporters must register as “social visitors” and are subject to the same restrictions that apply to the general public. (37 Pa. Code § 91.5)
Because Pennsylvania treats the media as members of the general public, reporters may not take tape recorders or cameras along when they visit inmates. California’s regulations are even more restrictive, banning not only cameras and recorders but also pencils, pens and paper. (15 Calif. Code of Regs §§ 3141, 3261.5)
Furthermore, in many states prison officials may legally eavesdrop on conversations between inmates and reporters and read inmates’ mail.
Access may also depend on the status of the inmate a reporter wishes to see. It may be difficult to contact inmates who have been placed in administrative or disciplinary segregation, though in federal prisons even inmates in special segregation can usually receive visitors. (28 C.F.R. § 540.) “Death rows” may also be governed by unique rules. For example, federal regulations bar press access to an inmate within seven days before his or her scheduled execution, except by permission of the prisoner and the warden of the facility. (28 C.F.R. § 26) Indiana also restricts access to inmates with scheduled execution dates, barring all press access prior to three days before the execution and limiting contact to a single member of a press pool. (Indiana DOC Admin. Proc. § 00-03-101)
Media attendance at executions is common, but prisons limit the number who can attend, and do not always allow the media witnesses to view the entire procedure.
Executions: Executions are certainly newsworthy, but they present another prison access problem for journalists.
The federal government and 38 states permit imposition of the death penalty. Regulations that provide for the presence of reporters and witnesses to executions vary from state to state. Some specifically mention the media, while others are more general.
For example, New York’s 1995 statute reinstating the death penalty instructs the state corrections commissioner to pick six witnesses to be present at an execution, but does not specify who those witnesses should be.
The law in Washington state is also imprecise. Judicial officers, members of the press and representatives of the victim’s and inmate’s family are permitted to witness the execution. However, the law does not specify how many people from each category may attend and places no limit on the number of reporters who may be present.
Other states’ laws, however, are more specific. In 1994, Tennessee enacted a law that requires the commissioner of corrections to name three print representatives, two radio reporters and two broadcast reporters to cover any executions.
Some states require that journalists must agree to a pool system as a condition of access. Oregon, for example, mandates that selected media witnesses must report to a media pool immediately after the execution and may not file their own reports until other members of the press are briefed. Reporters who violate this policy may be banned from any future executions.
Like other states, Oregon’s rule also restricts access by members of the press. Witnesses are only permitted to see the inmate after he or she has been confined to a gurney and all the intravenous tubes for the lethal injection are in place.
In California, however, a federal District Court judge in San Francisco ruled in 1996 that the state must allow witnesses to observe executions from start to finish – from before the inmate is confined until shortly after death. (California First Amendment Coalition v. Calderon)
No state statute allows the use of photographic or recording equipment during executions.
In 1976, a broadcast reporter in Texas sought to film the first execution to take place under the state’s new capital punishment statute. He argued that denying him use of his equipment was discriminatory because print media reporters were permitted to use pens and notepads, the tools of their trade.
The U.S. Court of Appeals in New Orleans (5th Cir.), relying on Pell and Saxbe, ruled that the First Amendment does not require governments to make available to the press information not available to the general public. The court added that the ban on electronic recording devices was not discriminatory, because print reporters were not allowed to take photographs. (Garrett v. Estelle)
In 1991, a U.S. District Court judge in San Francisco said reporters could not use cameras to record the first execution in California since 1967. The judge rejected a television station’s request to videotape the execution, deferring to prison authorities who claimed that broadcasting the event might cause trouble among other California inmates. The judge also speculated that a camera might fall and break the shield between witnesses and the lethal gas. (KQED v. Vasquez)
In June 1994, the U.S. Supreme Court in a one-sentence order denied an appeal by talk show host Phil Donahue and convicted murderer David Lawson to allow Donahue to videotape Lawson’s execution in a North Carolina gas chamber.
The appeal came after the request was denied by the North Carolina Supreme Court, which ruled that the plaintiffs did not have the right under either the state or federal constitution to tape the execution. (Lawson v. Dixon)
Military facilities: Each branch of the U.S. military has its own broad guidelines regarding media access to bases. In addition, each base often has the authority to implement its own regulations. For that reason, it is best to call the individual base for its policy on press access.
Generally speaking, most bases require that journalists be escorted by the base’s public information officer. Often this requires scheduling an appointment in advance.
Reporters have been denied access to events at military bases. A federal Court of Appeals in Washington, D.C. ruled in 1996 that regulations banning media from covering the arrival at military bases of the remains of soldiers killed abroad do not violate the First Amendment. The Department of Defense argued that freedom of speech and of the press do not create a right of access to government property simply because access could aid in reporting. In ruling for the government, the court said that the restrictions did not place a significant burden on newsgathering and did not “impede acquisition of basic facts, the raw material of a story.” (JB Pictures v. Department of Defense)
Military restrictions on the press may extend beyond the borders of permanent facilities. For example, in September 1997 the Pentagon declared a neighborhood in Baltimore a “National Defense Area” after the crash of an Air Force fighter jet. Residents were evacuated after the plane crashed during an air show flyby; they were not allowed to return to their homes for three days. Eight-foot-tall tarpaulins were erected around the plane to shield investigators as they searched for evidence of the cause of the crash, the Baltimore Sun reported. Two days after the crash, reporters and photographers were allowed access to the site although an armed Air Force security squadron stood guard and the plane was roped off to keep reporters at least 60 feet away, according to the Sun.
A 1996 California Attorney General’s opinion stated that police may exclude “unauthorized persons,” including members of the news media, from military air craft crash sites and “recover” photographs that may have been taken of classified materials. (66 Op. Att’y Gen. 497)
Civic centers and stadiums: When municipal property is used for a commercial rather than governmental purpose, the media may have no special right of access beyond that afforded the general public. Generally, this means that journalists who wish to photograph or record news such as concerts or sporting events may be prohibited from doing so even if the venue happens to be owned by the government.
In one challenge to such regulations, NBC sued after it was denied access to the Miami Beach convention center during the July 1987 convention of the Communications Workers of America, at which several presidential candidates were scheduled to speak. A federal appellate court found that the city’s leasing of its convention center to a labor union which refused to admit the television broadcaster is not a “sufficiently intertwined, symbiotic relationship” to constitute state action and therefore give rise to First Amendment protections. (National Broadcasting Co. v. Communications Workers of America)
A federal District Court in 1981 rejected a television station’s challenge to an event organizer’s refusal to permit it to do spot coverage of a figure skating championship at the Hartford, Conn., Civic Center. The promoter of the event had leased the facility from the city and given ABC the exclusive right to cover the event.
The court held that although the civic center was municipally owned, the First Amendment was not implicated. Because the city was participating in a commercial venture when it leased the center, it was not operating in a governmental capacity and was therefore free to exclude journalists from the premises. (Post-Newsweek Stations Inc. v. Traveler’s Insurance Co.)
A federal court in Providence, R.I., reached a similar conclusion in 1986, affirming the city civic center’s authority to keep cameras out of rock concerts held at the center. Concerned that the center’s ability to generate revenue would be limited if it could not honor performers’ requests for camera bans, the court found that the center was acting in a proprietary capacity and upheld the restriction. (D’Amario v. Providence Civic Center Authority)
However, in 1987 a federal court in Cleveland ruled that a state Democratic Party organization holding a convention in the Cleveland Civic Center could not admit some journalists, while barring others. The court held that, even though the facility was leased to a private organization, the private group was still bound by the same rules that applied to the use of municipal property for government functions. (National Broadcasting Co. v. Association of State Democratic Chairs)
The same rules would apply to sports stadiums. The right of officials to deny access will depend on ownership and lease agreements for particular events. However, some independent reporters who publish their own papers have encountered opposition on public sidewalks outside of stadiums. In these cases, the general right of access to public property dictates that these publishers have a First Amendment right to sell their newspapers on the sidewalks.
State legislatures: Although 45 states and the District of Columbia have laws or constitutional provisions making the state legislature open to the public, journalists continue to encounter lawmakers who attempt to deny or limit access to the floor.
In one instance, Mark Flatten, a statehouse reporter for Tribune Newspapers of Arizona, was ejected from the floor of the Arizona House of Representatives by House Speaker Don Aldridge. Although Aldridge refused to give a reason for his action, he purportedly was unhappy about a story Flatten wrote about the speaker’s relationship with Max Dunlap, who is serving a prison sentence for the car-bomb murder of Arizona Republic reporter Don Bolles. The Associated Press quoted Aldridge as saying that the story should have run as an editorial. Flatten was issued new press credentials as the Tribune’s attorneys were preparing to file a lawsuit claiming that the denial of Flatten’s credentials violated his First Amendment rights.
Actions to bar journalists from the legislature can be challenged under the federal constitution, state constitution or state open meetings law.
The First Amendment may give reporters a right of access to public legislative proceedings. Journalists seeking access to meetings of public bodies have had some success in citing a series of court decisions establishing the right of the news media and public under the First Amendment to attend criminal judicial proceedings. In March 1988, a federal district judge in Cleveland ruled that “existing case law and good sense” compel the conclusion that the First Amendment makes the legislative process available to the press and public except where a “compelling public interest” justifies closure, and then only to the extent that the interest is served. (WJW-TV v. City of Cleveland)
Many state constitutions contain a provision granting access to the legislature. In addition, several state open meetings laws provide that the legislature is open.
However, the fact that a law requires the legislature to hold open meetings may not mean that all sessions are public. Courts may be reluctant to interfere with internal workings of the legislature because they are concerned that judicial action would violate separation of powers principles.
In most states – all but five – a state constitutional provision or open meetings law declares that the legislature is open to the public. However, the legislature is often allowed to close its sessions in certain circumstances. For example, closure may be constitutional when the meeting “ought to be kept secret” (Arkansas), when “public security” is required (Michigan), or when the “welfare of the state requires otherwise” (Vermont). In addition, the state open meetings law may enumerate conditions under which the legislature may be closed.
In the District of Columbia, Illinois, Montana, New Mexico, North Dakota and Oregon, the state constitution or open meetings law specifies that the legislature is open, and neither the constitution nor the open meetings law provides any exceptions to the general grant of access.
The open meetings law in three states – Alaska, Hawaii and Oklahoma – specifically excepts the legislature from its ambit.
In Kentucky and Massachusetts, neither the state constitution nor the open records law addresses access to the legislature.
In some states where the constitution permits closure, the legislature may have enacted a provision in the open meetings law making their sessions public. Or access may be governed by administrative rules adopted by each house.
Ultimately, whether the news media have access to a legislature may be a matter of custom and practice. Reporters will not automatically be excluded in those states whose constitutions or open meetings laws do not specifically address access or in those states in which the legislature is specifically excepted in the open meetings law.
Remember that access to the legislature does not necessarily mean access to all areas of the floor. For example, reporters who cover the Pennsylvania Legislature were told by leaders of the House of Representatives in December 1996 that a press gallery in the front of the chamber would be moved to a rear balcony. Ostensibly, the new policy was designed to reduce crowding and disruptions on the House floor.
ACCESS TO PRIVATE PROPERTY
Newsworthy events such as arrests, fires or demonstrations frequently occur on private property. But property owners or police sometimes deny journalists access to homes, businesses, and even seemingly public places such as shopping centers and privately-owned housing developments. Even when reporters gain access without being stopped, property owners may sue them after the fact, seeking damages for trespass or invasion of privacy.
The U.S. Supreme Court has not yet considered whether the media have the right to follow news onto private property. Lower courts that have examined the issue have rendered widely varying opinions.
Courts frequently focus on whether the media had consent either from the owner or from law enforcement officials to enter the property to gather news. When reporters receive explicit consent, they should have little or no problem gaining access or defending coverage from any trespass and privacy suits.
In many cases, journalists enter without asking permission and the owner is not present to object, or is present but fails to voice objection. The court must then determine whether the owner’s silence amounted to “implied consent.”
However, problems may occur when deception is used to gain access. For example, two producers for ABC’s PrimeTime Live were able to enter the “employees only” sections of a Food Lion store by obtaining jobs based on falsified credentials, rather than identifying themselves as reporters and asking for consent. The resulting story reported unsanitary food handling practices at the store. Food Lion sued for fraud and trespass, alleging that the journalists were guilty of wrongdoing based not on what they reported but instead on the “deceptive” means used to gather information. The store won a $5.5 million jury verdict in January 1997, although the amount was later drastically reduced by the trial judge and the case was still on appeal as of October 1997. (Food Lion v. Capital Cities/ABC)
Residences: “Ride-alongs,” in which journalists often accompany law enforcement officers during searches and arrests, are popular with the media. But because ride-alongs often involve news that happens on private property – especially residences – journalists need to take care to get the proper consent from the appropriate people.
Courts differ on what kind of consent to enter is required. Some courts have stated that the owner’s silence alone is enough to imply consent. Others have found that police permission is sufficient if the owner is not present and cannot be asked for consent.
In Florida an invasion of privacy suit was filed against The (Jacksonville) Florida Times-Union over a published photograph of the “silhouette” left on the floor by the body of a 17-year-old girl killed in a house fire. The local fire marshall and a police sergeant investigating the fire invited the news media into the burned-out home to cover the story.
In court the officials testified that their invitation was standard practice. The property owner, the victim’s mother, was out of town at the time of the fire and therefore could not be asked to consent. The Florida Supreme Court agreed with the media that they had implied consent to enter the house based on the common practice of reporters entering private property without the owner’s explicit consent in the course of covering crimes or disasters. However, the court added that if the owner had been present and objected to the reporter’s presence then the reporter might have been held liable for invasion of privacy. (Florida Publishing Co. v. Fletcher)
Other courts have ruled that consent may never be implied. For example, a Rochester, N.Y., Humane Society investigator obtained a search warrant to enter a private home where he suspected animals were being mistreated. Before going to the home, the investigator called three television stations and invited them to accompany him. Two news teams entered with the investigator over the objections of the owner. They filmed the interior of the house and broadcast the story on the evening news.
When the owner sued the media for trespass, a New York state appellate court held that “the gathering of news and the means by which it is obtained does not authorize, under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice.” The court also compared the case to the previous case in Florida, finding the Humane Society investigation less newsworthy than a fire that claimed the life of a young person. Further, the court noted the property owner’s vociferous objections to the presence of the journalists. (Anderson v. WROC-TV)
Some angry property owners have tried to sue journalists for civil rights violations, based on the theory that ride-alongs so closely intertwine the press and the police that members of the media actually become “government actors.” For example, when a TV news crew in St. Louis accompanied police on a search for illegal weapons, an irate resident sued both the police and the station for violating her right to freedom from unreasonable searches and seizures. The trial court concluded that the news crew was not “acting under color of state law” and dismissed the suit against the station. On appeal, a federal circuit court agreed, focusing on the different goals and separate decision-making processes of the police and the media. (Parker v. Boyer)
A rancher sued the U.S. Fish and Wildlife Service and CNN in 1994 after one of the network’s camera crews accompanied federal agents onto the rancher’s property in search of poisoned eagles. CNN violated the Fourth Amendment, the plaintiff argued, because it worked so closely with federal officials during the raid and Fish and Wildlife’s warrant did not authorize the presence of the press during the search.
A federal district court in Billings, Mont., dismissed the suit, holding that the warrant gave agents the authority to invite the camera crew along. The rancher appealed, and the case was pending before a federal appeals court in San Francisco as of October 1997. (Berger v. CNN)
However, courts are divided about whether as a rule ride-alongs violate property owners’ Fourth Amendment right to freedom from unreasonable searches. Even though the media themselves may not be liable for alleged violations, the Fourth Amendment may still represent a barrier to ride-along coverage of investigations. If officers fear that the media’s presence will lead a court to reject evidence from a search or find the officers liable for violating the subject’s civil rights, they will not give journalists permission to accompany them.
Following the 1993 raid by agents of the Bureau of Alcohol, Tobacco and Firearms on the Branch Davidian compound in Waco, the Attorney General issued guidelines that barred the release of advance information to the media regarding law enforcement operations. The guidelines also said that members of the media should not be invited to be present during such actions. If media are present, they should be asked to leave; if they refuse, officials should consider cancelling the operation, according to the guidelines. (Section VII, Media Policy of the Department of Justice)
A few courts have held that media presence during searches does not violate the Fourth Amendment. (Moncrief v. Hanton; Higbee v. Times-Advocate; Prahl v. Brosamle.) On the other hand, a federal appellate court in New York City held that searching pursuant to a warrant was limited to the goals set forth in the warrant itself and other legitimate law enforcement pursuits. So when Secret Service agents invited a CBS camera crew to accompany them on a credit card fraud investigation, the suspect’s Fourth Amendment right to privacy was violated, the court found. (Ayeni v. Mottola)
However, the limitations of search warrants do not automatically exclude the press. When the owner of an animal shelter in Sanilac County, Mich., sued sheriff’s deputies who allowed a camera crew from a TV station to accompany them on a search of the shelter and a private residence, the court held that because the search warrant specifically granted permission for videotaping and photographing, the owner’s rights had not been violated even though the warrant itself said nothing about the TV news crew. (Stack v. Killian)
Businesses and shopping malls: Reporters and photographers may also face problems when trying to cover events in private businesses and in places that are privately owned but are open to the public.
Newsworthy events often occur in places, such as shopping malls, that are privately owned but are open to the public. Media advocates argue that, as in the case of public forums, if the public has a broad right of access then the media, too, should have unrestricted access to cover news.
The U.S. Supreme Court recognized this principle in a case involving a company town. It said that “[o]wnership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” (Marsh v. Alabama)
Opponents of this ruling argue that the media are permitted to enter on the same terms as the public, and the public has been invited to a shopping mall only to do business with merchants there. Thus, denial of access to gather news would not violate the First Amendment, they contend.
In 1968, the U.S. Supreme Court held that a shopping mall was the modern equivalent of main street, the “normal municipal business district.” It concluded that the landowner could not “limit the use of that property by members of the public in a manner that would not be permissible were the property owned by a municipality.” (Amalgamated Foods Employees Union Local 590 v. Logan Valley Plaza)
But in a subsequent decision the Court retreated from this position, stating that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” (Lloyd Corp. v. Tanner)
Then, in 1980, the U.S. Supreme Court essentially left the question of access to malls up to the states, holding that the federal Constitution affords no general right to free speech in privately-owned shopping centers. (PruneYard Shopping Center v. Robins)
However, state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. States may therefore afford the public greater protection for expression in a shopping mall, even at the expense of the owner’s property interest. Since the high court’s decision in PruneYard, several state supreme and appellate courts have ruled on the issue of whether their state constitutions give people the right to enter shopping malls for noncommercial purposes such as political campaigning or gathering signatures for an initiative petition.
Courts that have found constitutional protection for these activities have given a variety of reasons for their decisions.
For example, the Colorado Supreme Court found that a town’s financial support of a shopping mall, and the range of non-shopping activities allowed there, made the center the equivalent of a public forum. This finding was sufficient to trigger the state constitution’s free speech clause, which prevented the mall owners from excluding citizens involved in nonviolent political speech. Courts have also ruled that if a shopping mall allows some political opinions to be expressed, it must allow speakers of all types onto the premises.
Almost all courts that have found a right of access to shopping malls have also said that center owners may promulgate reasonable time, place and manner regulations on noncommercial speech activities. Under the three-part test discussed earlier, these rules must be content neutral, narrowly tailored to serve a significant state interest and leave open ample channels of communication.
Other state courts have given citizens a right under their constitutions’ ballot initiative and referendum clauses to enter shopping malls to gather signatures for petitions to put various issues on the ballot. At least one court has ruled this to be a limited right of access that does not give people the right to exercise other free speech rights in a shopping mall.
State appellate courts that have not found a right of access have usually done so on the ground that the state constitution does not confer greater free expression rights than the First Amendment.
Listed below are the specific holdings for each of the 19 states that have considered the question as of October 1997.
Arizona: An Arizona appellate court found that its state constitution does not require private property owners to permit political activities on their premises. Citizens have no right to enter a shopping mall for purposes other than shopping or promoting shopping. (Fiesta Mall Venture v. Mecham Recall Committee)
California: The California Supreme Court has held that its free speech clause protects citizens from private action as well as state action and grants issue-oriented free speech rights at a regional shopping center. “[S]peech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned” are protected by the California Constitution, the high court ruled. (Robins v. PruneYard Shopping Center)
Colorado: A city’s financial support of a shopping mall, including its operation of a police substation inside the mall, combined with the range of activities permitted in the mall, made it a latter-day public forum sufficient to trigger the Colorado Constitution’s free-speech clause, according to the state’s highest court. This clause prevented the owners of the mall from excluding citizens involved in nonviolent political speech. (Bock v. Westminster Mall Co.)
Connecticut: Connecticut’s constitutional guarantees of free speech and press do not allow the public to exercise those rights in regional shopping malls without the owners’ permission. (Cologne v. Westfarms Assoc.)
Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, “whether or not the place of the (event) is a burned out home, an office or other building or place.” (Florida Publishing Co. v. Fletcher)
Georgia: The Georgia Supreme Court in 1990 ruled that if the owners of a mall have enforced a policy prohibiting all solicitation and political activity on the premises, nothing in the state constitution or state law gives private citizens the right to enter the mall to solicit signatures for a recall petition. A concurring opinion observed that the case decided only the narrow issue of the right to gather signatures for a petition. The court did not decide the broader issue of the right to use commercial property for political purposes generally, according to the concurring opinion. (Citizens for Ethical Gov’t v. Gwinnett Place Assoc.)
Illinois: The Illinois Supreme Court, in a case decided prior to PruneYard Shopping Center, rejected the First Amendment claims of a group who entered a shopping center to distribute leaflets condemning racial tensions in that town. The court followed the U.S. Supreme Court’s ruling in Lloyd Corp. v. Tanner, which rejected the First Amendment claims of persons barred from distributing anti-war literature in a shopping mall. (People v. Sterling)
More recently, the Illinois Supreme Court ruled that a food store that allowed members of the general public access to its property for non-commercial expressive conduct could exclude persons collecting signatures on a political nominating petition. The high court held that the free speech provision of the Illinois Constitution does not apply to actions of private individuals, but only to actions by the state. (People v. Diguida)
Massachusetts: The Massachusetts Supreme Court has ruled that the state constitutional guarantee of free and equal elections gives political candidates the right to solicit signatures for a nominating petition in a shopping center’s mall area. (Batchelder v. Allied Stores Int’l, Inc.)
Michigan: The Michigan Supreme Court ruled in 1985 that neither the state constitution’s free speech clause nor its provision granting citizens the powers of initiative and referendum prohibit mall owners from denying or restricting access to citizens exercising those rights. (Woodland v. Michigan Citizens Lobby)
New Jersey: The New Jersey Supreme Court held in 1994 that the state constitution prohibits shopping malls from barring free speech activities. Regional shopping centers are the next logical place for free speech protection, the court said. However, the court only addressed the rights of leafletters, and said that mall owners have broad power to adopt regulations concerning time, place and manner of exercising the right of free speech. (New Jersey Coalition Against War in the Middle East v. JMB Realty)
New York: New York’s highest court ruled in 1985 that shopping mall owners could prohibit any kind of campaigning, petitioning or distributing of leaflets if there was in place a blanket, no handbilling policy. However, a concurring justice emphasized that the decision only applied to situations in which a mall owner had an absolute content-neutral prohibition of noncommercial expressive conduct. Once mall owners open their doors to noncommercial speech activity, they cannot exclude individuals entering the mall for that purpose on the basis of the content of their expression, according to the concurring opinion. (SHAD Alliance v. Smith Haven Mall)
North Carolina: The state Supreme Court has ruled that its state constitution may allow citizens to engage in free speech activities in shopping centers. However, the court held in a 1981 decision that the state constitution does not provide protection to signature gatherers who “accost” customers in the private parking lot of a mall if the owner has banned all solicitation. (State v. Felmet)
North Dakota: The North Dakota Supreme Court ruled in 1991 that a shopping mall that was built on city property but leased to private developers constituted a public forum. The mall owners can therefore only limit expressive activity, such as a protest by an antiabortion group, if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Mall owners may also make content-neutral rules regulating the time, place and manner of activities but they also must be narrowly tailored to serve a significant state interest and leave open ample channels of communication. (City of Jamestown v. Beneda)
Ohio: The Ohio Constitution’s free speech guarantees are no broader than the First Amendment, and therefore an injunction prohibiting picketing and handbilling at a shopping mall is constitutional, the state high court ruled in 1994. (Eastwood Mall v. Slanco)
Oregon: The Oregon Supreme Court in 1989 ruled that persons entering on mall property to gather petition signatures could not be completely prohibited from doing so. The court ruled that mall owners could bar groups from activities, such as setting up card tables on the property, that would substantially interfere with their business. The state high court did not decide the issue on constitutional grounds. (Lloyd Corp. v. Whiffen)
However, in 1990 the Oregon Court of Appeals ruled that the state constitution’s initiative and referendum clause, which allows citizens to place measures on the ballot if enough signatures are collected, allowed signature gatherers to enter shopping malls for this purpose. The appeals court based its ruling on the finding that shopping centers have become modern day town squares and access to them is necessary to preserve the people’s power of initiative and referendum. (Oregon v. Cargill)
Pennsylvania: Shopping mall owners are not required to provide a political forum for people with views on public issues so long as the owner has a blanket policy barring everyone from engaging in political speech on the premises. (Western Pa. Socialist Workers v. Conn. Gen. Life Ins. Co.)
South Carolina: The South Carolina Supreme Court in April 1992 held that neither the state nor federal free speech rights of a couple who distributed literature designed to increase awareness about child sex abuse were violated by a mall’s refusal to allow these activities on its property. (Charleston Joint Venture v. McPherson)
Washington: The free speech provision of Washington’s constitution does not allow a political organization to solicit contributions and sell literature in a privately owned shopping mall, the state Supreme Court ruled in 1989. (Southcenter v. Nat’l Dem. Comm.)
In a 1981 decision, the court ruled that people have a right under the initiative provision of the state constitution to enter malls to solicit signatures for an initiative petition in a manner that does not violate or unreasonably restrict the rights of private property owners. (Alderwood Assoc. v. Wash. Envtl. Council)
Wisconsin: The free speech provisions of the state constitution provide individuals only with protection from government interference with their rights of expression, the Wisconsin Supreme Court ruled in 1987. Therefore, the court ruled a privately owned mall could prohibit an antinuclear dance troupe from performing on mall property. (Jacobs v. Major)
Exclusive communities: Exclusive residential communities may pose similar problems for journalists. Access to these “walled communities” is usually controlled by security guards employed by the developer or property owners, and visitors must stop at the gate and obtain permission to enter.
The communities resemble the “company towns” of past decades, and principles enunciated by the U.S. Supreme Court in the 1940s may be applicable. The Court said the First Amendment prevented the company that owned the town from limiting expression. Now, it is possible that developers or homeowners may not limit newsgathering. (Marsh v. Alabama)
In cases challenging restrictions on distribution of printed material and on other forms of expression in such communities, courts have said that at the very least, such limitations may not be discriminatory. (Golden Rain Foundation v. Laguna Publishing Co.)
-YOU ARE NOT IMMUNE FROM PROSECUTION
Regardless of whether news occurs on public or private property, if you ignore police orders regarding access you risk arrest and prosecution. Case law makes clear that police can limit media access when they believe such restrictions are needed for public safety or to prevent interference with an investigation, and that the First Amendment does not provide immunity from criminal sanctions for disobeying police orders.
For example, several reporters were arrested in Oklahoma in 1979 for following anti-nuclear power demonstrators onto a privately owned power plant site. The land’s owner, the Public Service Co. of Oklahoma, had repeatedly denied access to the plant to the public and the media.
Because the power company’s activities were heavily regulated by the state and federal government, the court treated the plant’s management as a governmental entity. Nonetheless, the judge fined the reporters for criminal trespass.
Six reporters appealed their convictions, arguing that the media have an “institutional role in obtaining and disseminating information to the public” about such controversial issues as nuclear energy. Therefore, they argued, prosecution for trespassing violated the First Amendment.
But the state Criminal Court of Appeals ruled that the First Amendment does not guarantee access to property “simply because it is owned or controlled by the government,” and the court affirmed the convictions. Furthermore, it said that the First Amendment does not protect reporters from arrest and prosecution if they have broken the law while gathering the news. (Stahl v. Oklahoma)
However, courts often acknowledge after the fact that a reporter or photographer should have been granted access to a particular scene.
For example, in December 1992 a county judge in Pittsburgh dismissed charges of disorderly conduct and obstruction of justice against Charles Palla Jr., an Associated Press photographer who was arrested for allegedly interfering with the arrest of a homeless man. The judge ruled that the photographer had a legitimate purpose in photographing the arrest. Palla was taking pictures of the arrest when the homeless man ran away. The police chased the man, and Palla followed them. (City of Pittsburgh v. Palla)
Palla later sued the police and city for violating his civil rights by arresting him. Nearly three years later, a jury awarded him more than $100,000 in damages, finding that the police had arrested him without probable cause and that the city had condoned the arresting officer’s misconduct. (Palla v. Pittsburgh)
Similarly, in December 1994 a judge in Bakersfield, Calif., dismissed charges against John Harte, a Bakersfield Californian photographer who was arrested for interfering with police while they searched for a drowned child. The judge ruled that the photographer, who allegedly ignored police orders to leave the area, should not be tried for asserting his right to “be present and to view and photographically record the recovery of the body.” Harte said that during the incident he asked why he was being told to leave, to which an officer replied, “Because I said so.”
The judge’s decision was based on California Penal Code provisions that prohibit the media from being excluded from emergency scenes, and that restrict officers from detaining members of the press at emergency scenes. The judge also ruled that a trial would have had a chilling effect on freedom of the press. (California v. Harte)
In September 1994, charges were dropped against a New Jersey photographer who was arrested for “obstruction of the administration of the law” for continuing to photograph a grief-stricken father despite a police order to stop.
Michael Rafferty, a photographer for the Asbury Park Press, was taking pictures of a man as he witnessed his two young children burn in a car fire.
The prosecutor in the case determined that no crime had been committed and that “it was Mr. Rafferty’s job, as a member of the press, to capture this scene on film.”
OFFICIAL PERMISSION FOR ACCESS
Police media guidelines: Some police departments have promulgated media guidelines. Many of these policies were developed with the help of press associations and media organizations, and others were formulated by police alone.
These guidelines address release of information to the media, access to crime scenes and issuance of press credentials. They often state that the police department will release all information in a manner that does not jeopardize an individual’s rights, impair prosecution or impede the law enforcement process.
Guidelines vary on the issue of access to crime scenes.
A “general order” from the Virginia State Police manual tells officers to “extend every courtesy” to reporters at accident scenes and allow them “permission of closer access to the scene” than that given to the general public. Officers cannot “discourage or encourage the media in photographing or televising anything withing their view.” But officers can “cover or remove” evidence, victims and witnesses if necessary to “protect the integrity of the investigation” before allowing media access to the scene, and can impose more stringent access restrictions when necessary to protect evidence. (General Order 31)
The St. Petersburg, Fla. police press guidelines favor media access. They state that “News representatives with properly displayed press identifications will be allowed to go as near as feasible to the scene itself. . . . News representatives are not to be considered as the general public in the area of an incident or crime scene, but as persons who must fulfill their assigned tasks.”
The guidelines also say that if the crime scene is on private property, the press has the right to remain in the area unless the owner of the property explicitly denies the media permission to enter.
Conversely, guidelines for the Elkhart County, Ind. Sheriff’s Department discourage the media from entering the scenes of crimes or disasters. Those rules state: “Pass cards do not automatically grant access to scenes of major fires, natural disasters or catastrophic events . . . This access may only be granted by the sheriff.”
Members of the media disagree about whether guidelines are a benefit. Some fear that development of formal guidelines may result in less access to places where newsworthy events are taking place.
Police departments across the country are under some pressure to develop guidelines governing media relations. If a police department in the area you cover decides to implement guidelines, local media organizations may want to provide some suggestions or comments.
Only three states, California, Ohio and Oregon, have statutes that specifically address media access to emergency scenes.
The California statute says that police are not to prevent journalists from entering areas at disaster scenes that are closed to the general public. Although police can bar the general public from the scenes to protect public health and safety, they can only deny media access if the disaster may have been the result