First Amendment Handbook [Back to contents page] [RCFP Home Page]

Access to places: Civil remedy for denied access

Though the opportunity to gather news may already have passed, journalists may be able to sue the official denying access in civil court for violating their First Amendment rights. These civil rights claims, brought under federal law 42 U.S.C. § 1983, allow a plaintiff to seek damages for exclusion and a court order preventing further exclusion. Bringing a civil suit positions a journalist as a plaintiff rather than a criminal defendant who disobeyed official instructions to stay away from a crime scene or out of a courtroom.

The purpose of a "Section 1983" claim is to prevent constitutional violations by state officials who don't enforce the law or who conspire with private parties to violate an individual's civil rights. The right to sue a federal official for civil rights violations — called a Bivens action — has been implied from the Constitution itself.²³ Whether denying access is a First Amendment violation takes into account both history and the role of public access.²⁴ If the location is one that has always been open to the press, such as a courtroom, the likelihood increases that denying access also denies a constitutional right. In addition to historical access, the importance of newsgathering is balanced against the reason access has been denied.

A Section 1983 claim can be brought only against a state official acting "under the color" of law, but this doesn't mean an official has to be on duty. A newspaper publisher brought a successful Section 1983 action against off-duty sheriff deputies who attempted to buy all copies of an election day newspaper criticizing their favorite candidates.²⁵ This attempt to regulate or sensor the news violated the speaker's constitutional right to communicate and the audience's right to receive the information.

A civil rights action is also appropriate to recover seized property and money damages when state officials or officers at the scene of breaking news seize journalists' film or video.

Notes

23. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

24. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); See also Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

25. Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003).

Next section: Freedom of Information