By Michael Roffe, Contributing Writer
May 25, 2004
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. InPell, 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 definitions2 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.”4Unfortunately, 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.
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.)
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
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.
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 E. Lee contributed to this article.
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).