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Access to places: Access to private property

Reporters usually will need permission of the property owner or public officials before entering private property, even to cover a news event such as a demonstration, a natural disaster, an accident or a criminal investigation.

Whether you have to ask for permission depends largely on court decisions in your state. When an event is newsworthy, some courts have ruled, consent to enter will be "implied" if the property owner is "silent" or does not expressly order a reporter to keep out.¹³ But other courts have said that consent to enter private property may never be implied.

CBS News settled a federal civil rights claim in February 1994 brought after a network camera crew accompanied a Secret Service agent on a raid in a private apartment. An appellate court, finding that the agent could not reasonably believe he had the right to authorize the crew to accompany him, let the case against the agent continue. The court held that a family's right to be protected from a federal agent bringing unauthorized persons into their home was "clearly established."¹⁴

The U.S. Court of Appeals in San Francisco (9th Cir.) held in 1997 that a CNN news crew worked so closely with the Fish and Wildlife Service during a raid on a ranch that they had become joint state actors engaged in the execution of the service's search warrant. The ruling was appealed to the U.S. Supreme Court, which in May 1999 ordered the Ninth Circuit to reconsider its ruling in light of the court's finding that the law was unclear at the time of the raid. On remand, the Court of Appeals held in November 1999 that although federal agents violated the Fourth Amendment by permitting media to accompany them during the search, agents were entitled to assert a qualified immunity defense, because the right was not clearly established at the time of the search. Members of media, however, were not entitled to assert that defense. CNN then settled the case with the ranchers in May 2001.¹⁵

In two Wisconsin cases, police officials invited reporters to accompany them when they went to residences to make drug arrests. Reporters entered the dwellings and took pictures. The residents of the property later sued the media organizations and police for trespass and invasion of privacy. The journalists were found to have trespassed.¹⁶

In 1981, a Rochester, N.Y., Humane Society investigator invited television station news crews to accompany him as he searched a private home where he suspected animals were being mistreated. The owner objected to the presence of the journalists and later sued the media for trespass. A state appellate court held that newsgathering does not give journalists "the right to enter into a private home by an implied invitation arising out of a self-created custom and practice."¹⁷

You should consult your news organization's lawyer or the Reporters Committee about local precedent on the question of "implied consent" when neither property owners nor officials object to entry. Some occupants of private property may give consent, but their permission may be inadequate. A tenant may be able to give consent only to enter the portion of the property rented, not the entire building.

In situations where reporters have been expressly forbidden access to private property, courts have ruled that the First Amendment does not grant immunity from arrest and prosecution to reporters who commit illegal acts while gathering news.¹⁸

Notes

13. Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla. 1976); see also Wood v. Ft. Dodge Messenger, 13 Med.L.Rep. 1610 (Iowa Dist.Ct. 1986).

14. Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994).

15. Hanlon v. Berger, 129 F.3d 505 (9th Cir. 1997); remanded by U.S. Supreme Court, 525 U.S. 981 (1998), as decided on remand, 188 F.3d 1155 (9th Cir. 1999).

16. Heiser v. Waller, No. 85-C1454 (D. Wis. Nov. 25, 1986); Stevens v. Television Wisconsin Inc., No. 85-CV3227 (Wis.Cir.Ct. Jan.9, 1987).

17. Anderson v. WROC-TV, 441 N.Y.S.2d 220 (1981).

18. Stahl v. Oklahoma, 665 P.2d 839, cert. denied, 464 U.S. 1069 (1984).

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