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The First Amendment bars Congress from making any law abridging freedom of
speech or of the press. These rights generally involve the dissemination of
information, not the collection of it. Nevertheless, the Supreme Court said in
Branzburg
v. Hayes (1972) that the right to free press “could be eviscerated” if
there were no corollary right to gather news. The news media serve as surrogates
for the public, reporting information that individuals would want to know if
they could witness it themselves.
Where a proceeding or an area is off-limits to the general public, the news
media have no clearly established right to gain access to it. Although the
Supreme Court said in Branzburg that newsgathering is protected by the
First Amendment, it also cautioned that journalists “have no constitutional
right of access to the scenes of crime or disaster when the general public is
excluded.”
In 1978 the Court also noted, in Houchins v. KQED Inc.,
that “there is no constitutional basis ... for standards governing disclosure of
or access to information.” Instead, without statutory standards, the resolution
of disputes about news media access tend to be decided by the reasonableness of
a journalistic request for access, as observed in Newsgathering and the Law
2d.
Access becomes an issue when journalists try to enter private or restricted
areas. These are areas in which journalists’ presence might become problematic.
The police are allowed to establish reasonable restrictions on access to crime
and accident scenes, and to enforce the restrictions when necessary. Reasons to
restrict access include preventing obstruction of a police action or
investigation; maintaining safety; preserving evidence integrity, and protecting
privacy.
For prudential and historical reasons, certain sites tend to be more open to
press access than others. (In particular, courts are open to press access; see
separate sections on Courtroom access and Cameras in the courtroom.)
Jails generally permit only very limited press access because of potential
disciplinary and security problems, as the Supreme Court noted in the 1974 case
Saxbe
v. Washington Post Co.
In Pell
v. Procunier (1974), the Supreme Court found that the press did not have
a constitutional right of access greater than that afforded to the public. In
Pell, reporters sued to gain access to a prison to freely interview
certain inmates. The Court noted that the press did have some rights of access
to visit the prisons and to freely interview random prisoners, but it could not
demand face-to-face interviews with specifically designated inmates. The Court
went on to note that the press and the public are regularly excluded from grand
jury proceedings, judicial conferences, scenes of crime or disaster, meetings of
some official bodies, and meetings of private organizations. The Constitution
does not impose upon government “the affirmative duty to make available to
journalists sources of information not available to members of the public
generally.”
Rarely is press access to disaster and emergency scenes protected by statute.
Only California, Ohio and Alaska have such laws. 1 The
statutes do not guarantee the press an absolute right of access, nor does the
lack of a statute preclude press access in states without such laws.
Indeed, the courts have generally stood behind journalists who act reasonably
in trying to get information — but courts have not protected those who blatantly
disregard police prerogatives. Courts have recognized under the auspices of the
First Amendment a press privilege to be left alone by the police, so long as the
media do not unreasonably interfere with or obstruct police activity or risk
their own personal safety. In Connell v. Town of Hudson, for example, a
1990 case in New Hampshire, the federal district court found that a news
photographer had a First Amendment right to be at a car-accident scene.
Similarly, courts have been willing to open arbitrarily restricted sites to
further press access, such as the plane-crash site that was available for
news-media viewing for only an hour a day in Westinghouse Broadcasting Corp.
v. NTSB (1982). In that case, the federal district court in Massachusetts
ruled that such a time restriction on newsgathering unacceptably impinged on
“the constitutional right of the [news media] to obtain news.”
Reporters seem to get into trouble either when they interfere with police at
an emergency scene or when police become unreasonably restrictive. According to
a California appellate court, the statute at issue in Leiserson v. City of
San Diego (1986) guaranteed press access to a closed disaster site unless
the police on scene reasonably determined that press access would interfere with
emergency operations.
Although standards vary among states and situations, a consensus of legal
definitions 2 of what constitutes hindering arrests or
prosecution of crime suspects gives the broadest overview of what authorities
almost anywhere might consider unreasonable press access.
Obviously to be avoided are situations in which a journalist, through
clumsiness or craft, “conceals or destroys evidence of the crime, or tampers
with a witness, informant, document, or other source of information, regardless
of its admissibility in evidence.” 3
Similarly, a journalist reporting on the scene must not be the one who
inadvertently “warns the [criminal] of impending discovery or apprehension.”
4 Unfortunately, this concern is all too real. In 1993 a
reporter who asked for directions to the roadblock outside the Branch Davidian
compound near Waco, Texas, unintentionally warned lookouts that federal agents
were on their way. A tragic gunfight ensued. 5 Finally,
reporters must conduct themselves at scenes so as not to provide, inadvertently
or not, “a weapon, transportation, disguise, or other means of avoiding
apprehension or effecting escape.” 6
The judiciary tends to defer to police treatment of journalists only when
journalists disrespect the “degree of restraint dictated by the nature of the
information and the countervailing interests in security and confidentiality,”
as the Supreme Court said in Richmond Newspapers Inc. v.
Virginia (1980).
For example, consider the journalist who entered a closed crash site instead
of observing airport media guidelines, which specifically restricted unescorted
reporters in order to accommodate newsgathering in emergency situations.
7
While other media were gathering at the airport offices for a press
conference and an escorted tour was scheduled a half-hour later, this reporter’s
camera crew decided to follow an emergency vehicle onto the scene. When police
asked them to leave, they did so on foot. Then the journalist disregarded the
police and jumped the fence in front of public bystanders. After refusing to
leave without being handcuffed, he was arrested and later convicted of
disorderly conduct.
Press credentials
The policing of credentials is even less
regulated than the policing of emergency and disaster scenes. The nature of such
a scene is that the entire public will not be able to come and view it, so there
must be a system for filtering out those who have no legitimate reason to be
there and those who do, such as that used in United States v. Webber
(2003), a federal district court case in Michigan. This is true even in the most
public of proceedings, such as sessions of Congress, reported from the press
gallery, so long as the accreditation policy does not disadvantage the applicant
more than the public or the press generally. 8
Most police departments will recognize credentials with photo ID from a press
organization identifying the entrant as a legitimate journalist working on a
story. However, in some scenarios, access with credentials may be further
limited to major news outlets with major regional coverage, such as those
afforded space in the limited area of the press “shack” at the New York Police
Department headquarters. 9
Student journalists in particular often face roadblocks in obtaining
credentials; they should be prepared to demonstrate their professionalism
through their respectful demeanor, knowledge of the access rules, and
persistence in trying to get a press pass. (See “Student Media
Guide to Newsgathering” from the Student Press Law Center.)
Though a court has the authority to limit media credentials in a case, it
cannot exercise that authority arbitrarily. Nor can credentials be denied
because of the content of the media representative’s work. To prevent such
unconstitutional content-based discrimination, the First Amendment requires that
credentialing systems utilize “narrow and specific standards which advance a
compelling state interest,” as stated in Quad-City Community News Serv. v.
Jebens, an Iowa case from 1971. In a 1975 D.C. Circuit case, Consumers
Union of U.S. v. Periodical Correspondents’ Ass’n, the court said of
credentialing that “Such rules must, among other things, be so fashioned that
due process is provided prior to exclusion, with opportunity for adequate
impartial review wherever a publication is excluded.”
The rules also must require an explanation of a denial of credentials and be
published in such a manner that the party affected is able to know how to comply
with the rules and how to challenge them if the party believes them improper.
(See, for example, Sherrill v. Knight, a 1977 case also from the D.C.
Circuit.)
Privacy
Free-press rights are often in tension with privacy rights.
The Supreme Court has held in Wilson v. Layne (1999) that news media may
not accompany police into a private home in the execution of a warrant. The only
exception to the rule in Wilson is if the media aid in the execution of
the warrant — a rare situation indeed, in that most news organizations would bar
reporters from offering such assistance.
Beyond constitutional concerns, nearly all states recognize some form of tort
for invasion of privacy. However, liability varies widely from state to state
and from situation to situation, so it is risky to generalize too broadly. What
follows touches on a few points for consideration but cannot substitute for a
thorough understanding of specific state laws concerning privacy.
News media entering disaster and emergency scenes should be aware of the two
relevant invasion-of-privacy torts: “unreasonable intrusion” and “publicity of
private matter.” 10
Some states have also enumerated specific statutory wrongs that apply to the
press, including no photographing the dead, no hidden cameras, and no recording
private conversations. It is illegal to record private conversations without the
consent of all parties in California, Delaware, Florida, Maryland,
Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and
Washington.
Further, hidden cameras are illegal in Alabama, Arkansas, California, Delaware,
Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota
and Utah. (See “Photographers’ Guide to
Privacy” from the Reporters Committee for Freedom of the Press; also RCFP's Hidden-Camera Statutes, and RTNDA's material on hidden cameras and microphones.)
Michigan law also bars any photography of a dead person in a grave — meaning
a site where the person was found dead — including “a decedent who died in an
accident or disaster.” 11
The American Law Institute’s Second Restatement of Torts, an
explanatory distillation of different areas of law, identified four
invasion-of-privacy torts that all infringed on the general right to be left
alone: intrusion, private matter, false light and appropriation of name or
likeness. It also recognized that these concerns often overlap.
Unreasonable intrusion is when someone intentionally invades the “solitude or
seclusion of another or his private affairs or concerns” if that intrusion would
be highly offensive to a reasonable person. 12
Publicity of private matter is a tort involving someone’s publicity of a
“matter concerning the private life of another” that would highly offend a
reasonable person and is “not of legitimate concern to the public.”
13
It might also be problematic to depict those grieving for their loved ones
because grief is a very private matter. For example, a documentary television
show filmed and broadcast the rescue of a car victim without her consent. The
footage was found by a California state court in 2003 to be “newsworthy” and
thus not liable as a private matter; however, the court said flying around in a
helicopter looking for good footage did not justify flouting the generally
applicable law against highly offensive intrusion. 14
Conclusion
The courts have not recognized that the news media have
any constitutional guarantee of access to any particular scene. However, there
are statutory rights in a few states and case law in others that protect press
access from unreasonable restriction.
Journalists should inquire into emergency-services media policies in their
locales and to read them thoroughly. At a crime or accident scene, journalists
should ask for the public information officer or similarly responsible official;
if none is available, the journalist might ask the officer restricting entry
about certain places or ways of accessing the scene without being intrusive or
irresponsible.
In general, police should be responsive to the requests insofar as what is
asked does not actually interfere with police operations, as explained, for
example, in the Phoenix
Police Department’s “Training Tips from the Legal Unit: Media Access to
Crime-Designated Scenes.”
Making requests is not against the law, but interfering even unintentionally
with emergency operations or police investigations usually is.
In general, careful, responsible journalism will almost always prove safe
from liability. The more aggressive or sensational the attempt to gather news,
the higher the risk of trouble.
Michael Roffe is a graduate of Colgate University and Vanderbilt
University Law School. He worked as a research assistant at the First Amendment
Center in 2004.
Lawyer Douglas Lee contributed to
this article.
Notes
1 Cal. Penal Code 409.5(a),(d) (2004); Ohio Rev. Code
Ann. 2917.13(B) (2004); Alaska Stat. 26.23.200(1)(2004).
2 This “consensus” refers to what can be found in the
Model Penal Code, a 1962 proposed revision of the criminal law by jurists,
lawyers and law professors that is not binding but has been the model for many
state criminal codes. The MPC is used here as a kind of Restatement of Criminal
Law. Under the MPC, “purpose” is required for any of these acts to be a crime.
Journalists should check with their own state’s obstruction laws, which may
define differently the state of mind or physical conduct required.
3 MPC §242.3 (c).
4 MPC §242.3 (d).
5 Risenhoover v. England, 936 F.Supp 392, 401
(W.D. Tex. 1995).
6 MPC §242.3 (b).
7 City of Oak Creek v. King, 436 N.W.2d 285 (Wis.
1989).
8 Consumers Union of U.S., Inc. v. Periodical
Correspondents’ Ass’n, 515 F.2d 1341, 1347 (U.S. App. D.C. 1975).
9 “In House Press,”
Deputy Comm’r Public Information, N.Y.P.D.; see also Webber, 2003
U.S. Dist. LEXIS 11287.
10 See Comment, Restat.2d Torts §652A (1977) and
Shepard’s; also see Media Privacy and Related Law 2005-06, published by
the Media Law Resource Center.
11 Mich. Comp. Laws §750.160a.
12 Restat.2d Torts §652B (1977).
13 Id. At §652D.
14 Shulman v. Group W Productions, Inc., 18
Cal.4th 200 (2003).
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