Access to Places and Information

The First Amendment Protection of News Gathering

Limited Protection: There is no guarantee of access There is no special protection for media actions

/ work “The First Amendment does not provide a

license to violate valid criminal law”

Lawrence Matthews case (1998)

A U.S. District Court in Maryland refused to dismiss charges of transporting and receiving child pornography against a free-lance journalist.

Matthews argued that he was gathering news, not child pornography

The Court: “The First Amendment does not grant the press automatic relief from laws of general application.”

Hunting the stars http://www.theatlantic.com/doc/200804/britney-spears http://www.theatlantic.com/doc/200803u/celebrity-photos-slideshow Articles from The Atlantic (April 2008) http://x17online.com/

Photographers arrested for reckless driving LOS ANGELES (Reuters). JAN 17, 2008 Four photographers were arrested for reckless

driving after a late night car chase of pop star Britney Spears on the outskirts of Los Angeles, police said on Thursday.

The four were among a group of paparazzi seen driving at high speed in the Mission Hills area of the city around 11:30 p.m. on Wednesday on the trail of the troubled singer.

Four men were booked for reckless driving and each ordered to put up $5,000 bail.

Another photographer arrested: Lohan’s case in 2005

In 2005, Galo Cesar Ramirez, the celebrity photographer, was charged with false imprisonment and assault with a deadly weapon after ramming a car driven by Lindsay Lohan.

The Los Angeles D.A. concluded that there was no evidence that he deliberately crashed his minivan into the actress' Mercedes-Benz: "Based upon the damage sustained to both the victim's and the suspect's cars, it appears that although the suspect was most likely driving carelessly when he collided with the victim's car, it was not an intentional assault,”

Civil v. Criminal lawsuits Civil lawsuits and legislative curbs on photojournalists

face very strict standards However, criminal acts by journalists are not protected While many of the crimes committed by photographers

may by only misdemeanors, the prosecutors are studying whether the teams of paparazzi could be prosecuted on felony conspiracy charges.

Conspiracy in criminal law

A conspiracy is an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions

Conspiracy law usually does not require proof of the specific intent by the defendants to injure any specific person in order to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act.

California Anti-Paparazzi Law

Any invasion of privacy with the intent to capture any type of visual image etc. of the plaintiff is liable

for up to 3 times the amount of damages and

for punitive damages and, if proven to be committed for a commercial

purpose, subject to surrender to the plaintiff of any proceeds obtained as a result of that violation.

Liability for Newsgathering Methods

Journalists may be subject to criminal liability for their newsgathering techniques.

Some common legal areas (in addition to the invasion of privacy) include:

Trespass

Fraud / Misrepresentation

Trespass

An intentional, unauthorized entry onto land that is occupied or possessed by another.“There is no journalists’ privilege to trespass.”

Applies to private and government-owned property

Also: criminal trespass

Trespass Possible Defenses

Express Consent (specific authorization) But beware of exceeding scope of consent or

obtaining consent from someone who does not have the power to consent

Implied Consent (doctrine of custom and usage: The property, although privately owned, is generally open to the public and journalists do not otherwise interfere with the business use).

But never rely entirely on the notion of “implied consent”

Examples of trespass rulings

Government-owned property:

The Camp Garcia Naval Installation at Vieques, Puerto Rico (2000).Private: Reporter Bryon Wells’ case (2004)Desnick v. ABC (1995)

Desnick v. ABC (1995)

Two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. They used hidden cameras and recorded the eye examinations which were subsequently used for a news story about Desnick's eye clinics.

Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.

Fraud

FRAUD: A knowingly false statement that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff’s harm or injury.

Danger: Be aware, from a criminal perspective, of fraud in the form of impersonating a government official

Food Lion Inc v. Capital Cities/ABC

ABC employees trespassed at Food Lion stores to obtain hidden-camera footage aired later on “Primetime Live” alleging food mishandling

The business was hurt by the report Sued ABC for trespass and fraud Awarded only a nominal damage $1 for trespass

Misrepresentation

Veilleux v. NBC

Failure to Obey Lawful Orders

Police and fire officials have the right to restrict media access to the scene of disasters, accidents, and fires

Reporters who do not obey these rules face charges of disorderly conduct, criminal trespassing, delaying and obstructing an officer

A STANDING PRESS PASS

Some jurisdictions issue standing press passes permitting access to a scene of disaster, crime, etc.

However:

1. Technically the pass is not necessary

2. Even with the pass the media might be held behind the lines

An example: L.A. Sheriff’s: Media Access at an Incident/Crime Scene

Incident/Crime Scene and Command Post Areas may be closed to the media.

Under most circumstances, the areas will initially be closed to the media.

Constraints to media access are subject to review by incident commanders and Department executives. They should be lifted whenever the situation warrants.

Whenever the media is denied access to an incident/crime scene LASD shall

Provide a "Media Area" with maximum access possible under the circumstances

Provide timely / updated information to the media Consider "Pool" access, (1 TV camera, 1 TV

reporter, 1 print, 1 photographer, 1 radio reporter) into the scene, who will share the information with their counterparts outside the scene

NOTE: All information to be released at the scene must be cleared by the incident commander, in cooperation with investigators

Tagging Along with Police

There is no special exception for trespass when accompanying emergency services (police, fire). Miller v NBC 1986 (the same case covered in privacy chapter). Camera crew followed all the way to the bedroom filming the resuscitation without obtaining consent from Miller’s family

Allowed if the police can claim temporary custody of a property. Florida Publishing Co. v. Fletcher 1976. A photographer who accompanied a fire marshal into a home destroyed by fire did not intrude because consent to enter was implied based upon common custom and practice for the news media.

Special problems / situations

Contractual Limitations Confiscation Polling places Jails / prisons

Government Proceedings State open meetings laws: require that

government deliberations to be open to the public. The law authorizes closed sessions (executive sessions) but only in special circumstances

Federal Gov: The Sunshine Act of 1976

The Freedom of Information Act

Provides a statutory right of access to records possessed by federal government agencies.

This right of access, however, is qualified by nine specific statutory exemptions and by recent laws, such as the Homeland Security of Act of 2002, that create specific exceptions from FOIA requirements.

FOIA Exemptions 1. National security matters2. Housekeeping materials (personnel practices) 3. Material exempted by statute 4. Trade secrets of private business 5. Internal memos, working papers & Lawyer-Client

privileged documents 6. Personal privacy files (e.g., medical records)7. Law enforcement records (investigations)8. Financial institution materials 9. Geological data (oil and gas)

Homeland Security Act of 2002

Creates a massive exception from federal FOIA laws for so-called “critical infrastructure information” that is voluntarily submitted to the Homeland Security Department by private persons and business entities.