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ACCESS TO PRIVATE PROPERTY
Newsworthy events such as arrests, fires or demonstrations frequently occur on private property. But property owners or police sometimes deny journalists access to homes, businesses, and even seemingly public places such as shopping centers and privately-owned housing developments. Even when reporters gain access without being stopped, property owners may sue them after the fact, seeking damages for trespass or invasion of privacy. The U.S. Supreme Court has not yet considered whether the media have the right to follow news onto private property. Lower courts that have examined the issue have rendered widely varying opinions. Courts frequently focus on whether the media had consent either from the owner or from law enforcement officials to enter the property to gather news. When reporters receive explicit consent, they should have little or no problem gaining access or defending coverage from any trespass and privacy suits. In many cases, journalists enter without asking permission and the owner is not present to object, or is present but fails to voice objection. The court must then determine whether the owner's silence amounted to "implied consent." However, problems may occur when deception is used to gain access. For example, two producers for ABC's PrimeTime Live were able to enter the "employees only" sections of a Food Lion store by obtaining jobs based on falsified credentials, rather than identifying themselves as reporters and asking for consent. The resulting story reported unsanitary food handling practices at the store. Food Lion sued for fraud and trespass, alleging that the journalists were guilty of wrongdoing based not on what they reported but instead on the "deceptive" means used to gather information. The store won a $5.5 million jury verdict in January 1997, although the amount was later drastically reduced by the trial judge and the case was still on appeal as of October 1997. (Food Lion v. Capital Cities/ABC) Residences: "Ride-alongs," in which journalists often accompany law enforcement officers during searches and arrests, are popular with the media. But because ride-alongs often involve news that happens on private property - especially residences - journalists need to take care to get the proper consent from the appropriate people. Courts differ on what kind of consent to enter is required. Some courts have stated that the owner's silence alone is enough to imply consent. Others have found that police permission is sufficient if the owner is not present and cannot be asked for consent. In Florida an invasion of privacy suit was filed against The (Jacksonville) Florida Times-Union over a published photograph of the "silhouette" left on the floor by the body of a 17-year-old girl killed in a house fire. The local fire marshall and a police sergeant investigating the fire invited the news media into the burned-out home to cover the story. In court the officials testified that their invitation was standard practice. The property owner, the victim's mother, was out of town at the time of the fire and therefore could not be asked to consent. The Florida Supreme Court agreed with the media that they had implied consent to enter the house based on the common practice of reporters entering private property without the owner's explicit consent in the course of covering crimes or disasters. However, the court added that if the owner had been present and objected to the reporter's presence then the reporter might have been held liable for invasion of privacy. (Florida Publishing Co. v. Fletcher) Other courts have ruled that consent may never be implied. For example, a Rochester, N.Y., Humane Society investigator obtained a search warrant to enter a private home where he suspected animals were being mistreated. Before going to the home, the investigator called three television stations and invited them to accompany him. Two news teams entered with the investigator over the objections of the owner. They filmed the interior of the house and broadcast the story on the evening news. When the owner sued the media for trespass, a New York state appellate court held that "the gathering of news and the means by which it is obtained does not authorize, under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice." The court also compared the case to the previous case in Florida, finding the Humane Society investigation less newsworthy than a fire that claimed the life of a young person. Further, the court noted the property owner's vociferous objections to the presence of the journalists. (Anderson v. WROC-TV) Some angry property owners have tried to sue journalists for civil rights violations, based on the theory that ride-alongs so closely intertwine the press and the police that members of the media actually become "government actors." For example, when a TV news crew in St. Louis accompanied police on a search for illegal weapons, an irate resident sued both the police and the station for violating her right to freedom from unreasonable searches and seizures. The trial court concluded that the news crew was not "acting under color of state law" and dismissed the suit against the station. On appeal, a federal circuit court agreed, focusing on the different goals and separate decision-making processes of the police and the media. (Parker v. Boyer) A rancher sued the U.S. Fish and Wildlife Service and CNN in 1994 after one of the network's camera crews accompanied federal agents onto the rancher's property in search of poisoned eagles. CNN violated the Fourth Amendment, the plaintiff argued, because it worked so closely with federal officials during the raid and Fish and Wildlife's warrant did not authorize the presence of the press during the search. A federal district court in Billings, Mont., dismissed the suit, holding that the warrant gave agents the authority to invite the camera crew along. The rancher appealed, and the case was pending before a federal appeals court in San Francisco as of October 1997. (Berger v. CNN) However, courts are divided about whether as a rule ride-alongs violate property owners' Fourth Amendment right to freedom from unreasonable searches. Even though the media themselves may not be liable for alleged violations, the Fourth Amendment may still represent a barrier to ride-along coverage of investigations. If officers fear that the media's presence will lead a court to reject evidence from a search or find the officers liable for violating the subject's civil rights, they will not give journalists permission to accompany them. Following the 1993 raid by agents of the Bureau of Alcohol, Tobacco and Firearms on the Branch Davidian compound in Waco, the Attorney General issued guidelines that barred the release of advance information to the media regarding law enforcement operations. The guidelines also said that members of the media should not be invited to be present during such actions. If media are present, they should be asked to leave; if they refuse, officials should consider cancelling the operation, according to the guidelines. (Section VII, Media Policy of the Department of Justice) A few courts have held that media presence during searches does not violate the Fourth Amendment. (Moncrief v. Hanton; Higbee v. Times-Advocate; Prahl v. Brosamle.) On the other hand, a federal appellate court in New York City held that searching pursuant to a warrant was limited to the goals set forth in the warrant itself and other legitimate law enforcement pursuits. So when Secret Service agents invited a CBS camera crew to accompany them on a credit card fraud investigation, the suspect's Fourth Amendment right to privacy was violated, the court found. (Ayeni v. Mottola) However, the limitations of search warrants do not automatically exclude the press. When the owner of an animal shelter in Sanilac County, Mich., sued sheriff's deputies who allowed a camera crew from a TV station to accompany them on a search of the shelter and a private residence, the court held that because the search warrant specifically granted permission for videotaping and photographing, the owner's rights had not been violated even though the warrant itself said nothing about the TV news crew. (Stack v. Killian) Businesses and shopping malls: Reporters and photographers may also face problems when trying to cover events in private businesses and in places that are privately owned but are open to the public. Newsworthy events often occur in places, such as shopping malls, that are privately owned but are open to the public. Media advocates argue that, as in the case of public forums, if the public has a broad right of access then the media, too, should have unrestricted access to cover news. The U.S. Supreme Court recognized this principle in a case involving a company town. It said that "[o]wnership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." (Marsh v. Alabama) Opponents of this ruling argue that the media are permitted to enter on the same terms as the public, and the public has been invited to a shopping mall only to do business with merchants there. Thus, denial of access to gather news would not violate the First Amendment, they contend. In 1968, the U.S. Supreme Court held that a shopping mall was the modern equivalent of main street, the "normal municipal business district." It concluded that the landowner could not "limit the use of that property by members of the public in a manner that would not be permissible were the property owned by a municipality." (Amalgamated Foods Employees Union Local 590 v. Logan Valley Plaza) But in a subsequent decision the Court retreated from this position, stating that property does not "lose its private character merely because the public is generally invited to use it for designated purposes." (Lloyd Corp. v. Tanner) Then, in 1980, the U.S. Supreme Court essentially left the question of access to malls up to the states, holding that the federal Constitution affords no general right to free speech in privately-owned shopping centers. (PruneYard Shopping Center v. Robins) However, state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. States may therefore afford the public greater protection for expression in a shopping mall, even at the expense of the owner's property interest. Since the high court's decision in PruneYard, several state supreme and appellate courts have ruled on the issue of whether their state constitutions give people the right to enter shopping malls for noncommercial purposes such as political campaigning or gathering signatures for an initiative petition. Courts that have found constitutional protection for these activities have given a variety of reasons for their decisions. For example, the Colorado Supreme Court found that a town's financial support of a shopping mall, and the range of non-shopping activities allowed there, made the center the equivalent of a public forum. This finding was sufficient to trigger the state constitution's free speech clause, which prevented the mall owners from excluding citizens involved in nonviolent political speech. Courts have also ruled that if a shopping mall allows some political opinions to be expressed, it must allow speakers of all types onto the premises. Almost all courts that have found a right of access to shopping malls have also said that center owners may promulgate reasonable time, place and manner regulations on noncommercial speech activities. Under the three-part test discussed earlier, these rules must be content neutral, narrowly tailored to serve a significant state interest and leave open ample channels of communication. Other state courts have given citizens a right under their constitutions' ballot initiative and referendum clauses to enter shopping malls to gather signatures for petitions to put various issues on the ballot. At least one court has ruled this to be a limited right of access that does not give people the right to exercise other free speech rights in a shopping mall. State appellate courts that have not found a right of access have usually done so on the ground that the state constitution does not confer greater free expression rights than the First Amendment. Listed below are the specific holdings for each of the 19 states that have considered the question as of October 1997. Arizona: An Arizona appellate court found that its state constitution does not require private property owners to permit political activities on their premises. Citizens have no right to enter a shopping mall for purposes other than shopping or promoting shopping. (Fiesta Mall Venture v. Mecham Recall Committee) California: The California Supreme Court has held that its free speech clause protects citizens from private action as well as state action and grants issue-oriented free speech rights at a regional shopping center. "[S]peech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned" are protected by the California Constitution, the high court ruled. (Robins v. PruneYard Shopping Center) Colorado: A city's financial support of a shopping mall, including its operation of a police substation inside the mall, combined with the range of activities permitted in the mall, made it a latter-day public forum sufficient to trigger the Colorado Constitution's free-speech clause, according to the state's highest court. This clause prevented the owners of the mall from excluding citizens involved in nonviolent political speech. (Bock v. Westminster Mall Co.) Connecticut: Connecticut's constitutional guarantees of free speech and press do not allow the public to exercise those rights in regional shopping malls without the owners' permission. (Cologne v. Westfarms Assoc.) Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, "whether or not the place of the (event) is a burned out home, an office or other building or place." (Florida Publishing Co. v. Fletcher) Georgia: The Georgia Supreme Court in 1990 ruled that if the owners of a mall have enforced a policy prohibiting all solicitation and political activity on the premises, nothing in the state constitution or state law gives private citizens the right to enter the mall to solicit signatures for a recall petition. A concurring opinion observed that the case decided only the narrow issue of the right to gather signatures for a petition. The court did not decide the broader issue of the right to use commercial property for political purposes generally, according to the concurring opinion. (Citizens for Ethical Gov't v. Gwinnett Place Assoc.) Illinois: The Illinois Supreme Court, in a case decided prior to PruneYard Shopping Center, rejected the First Amendment claims of a group who entered a shopping center to distribute leaflets condemning racial tensions in that town. The court followed the U.S. Supreme Court's ruling in Lloyd Corp. v. Tanner, which rejected the First Amendment claims of persons barred from distributing anti-war literature in a shopping mall. (People v. Sterling) More recently, the Illinois Supreme Court ruled that a food store that allowed members of the general public access to its property for non-commercial expressive conduct could exclude persons collecting signatures on a political nominating petition. The high court held that the free speech provision of the Illinois Constitution does not apply to actions of private individuals, but only to actions by the state. (People v. Diguida) Massachusetts: The Massachusetts Supreme Court has ruled that the state constitutional guarantee of free and equal elections gives political candidates the right to solicit signatures for a nominating petition in a shopping center's mall area. (Batchelder v. Allied Stores Int'l, Inc.) Michigan: The Michigan Supreme Court ruled in 1985 that neither the state constitution's free speech clause nor its provision granting citizens the powers of initiative and referendum prohibit mall owners from denying or restricting access to citizens exercising those rights. (Woodland v. Michigan Citizens Lobby) New Jersey: The New Jersey Supreme Court held in 1994 that the state constitution prohibits shopping malls from barring free speech activities. Regional shopping centers are the next logical place for free speech protection, the court said. However, the court only addressed the rights of leafletters, and said that mall owners have broad power to adopt regulations concerning time, place and manner of exercising the right of free speech. (New Jersey Coalition Against War in the Middle East v. JMB Realty) New York: New York's highest court ruled in 1985 that shopping mall owners could prohibit any kind of campaigning, petitioning or distributing of leaflets if there was in place a blanket, no handbilling policy. However, a concurring justice emphasized that the decision only applied to situations in which a mall owner had an absolute content-neutral prohibition of noncommercial expressive conduct. Once mall owners open their doors to noncommercial speech activity, they cannot exclude individuals entering the mall for that purpose on the basis of the content of their expression, according to the concurring opinion. (SHAD Alliance v. Smith Haven Mall) North Carolina: The state Supreme Court has ruled that its state constitution may allow citizens to engage in free speech activities in shopping centers. However, the court held in a 1981 decision that the state constitution does not provide protection to signature gatherers who "accost" customers in the private parking lot of a mall if the owner has banned all solicitation. (State v. Felmet) North Dakota: The North Dakota Supreme Court ruled in 1991 that a shopping mall that was built on city property but leased to private developers constituted a public forum. The mall owners can therefore only limit expressive activity, such as a protest by an antiabortion group, if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Mall owners may also make content-neutral rules regulating the time, place and manner of activities but they also must be narrowly tailored to serve a significant state interest and leave open ample channels of communication. (City of Jamestown v. Beneda) Ohio: The Ohio Constitution's free speech guarantees are no broader than the First Amendment, and therefore an injunction prohibiting picketing and handbilling at a shopping mall is constitutional, the state high court ruled in 1994. (Eastwood Mall v. Slanco) Oregon: The Oregon Supreme Court in 1989 ruled that persons entering on mall property to gather petition signatures could not be completely prohibited from doing so. The court ruled that mall owners could bar groups from activities, such as setting up card tables on the property, that would substantially interfere with their business. The state high court did not decide the issue on constitutional grounds. (Lloyd Corp. v. Whiffen) However, in 1990 the Oregon Court of Appeals ruled that the state constitution's initiative and referendum clause, which allows citizens to place measures on the ballot if enough signatures are collected, allowed signature gatherers to enter shopping malls for this purpose. The appeals court based its ruling on the finding that shopping centers have become modern day town squares and access to them is necessary to preserve the people's power of initiative and referendum. (Oregon v. Cargill) Pennsylvania: Shopping mall owners are not required to provide a political forum for people with views on public issues so long as the owner has a blanket policy barring everyone from engaging in political speech on the premises. (Western Pa. Socialist Workers v. Conn. Gen. Life Ins. Co.) South Carolina: The South Carolina Supreme Court in April 1992 held that neither the state nor federal free speech rights of a couple who distributed literature designed to increase awareness about child sex abuse were violated by a mall's refusal to allow these activities on its property. (Charleston Joint Venture v. McPherson) Washington: The free speech provision of Washington's constitution does not allow a political organization to solicit contributions and sell literature in a privately owned shopping mall, the state Supreme Court ruled in 1989. (Southcenter v. Nat'l Dem. Comm.) In a 1981 decision, the court ruled that people have a right under the initiative provision of the state constitution to enter malls to solicit signatures for an initiative petition in a manner that does not violate or unreasonably restrict the rights of private property owners. (Alderwood Assoc. v. Wash. Envtl. Council) Wisconsin: The free speech provisions of the state constitution provide individuals only with protection from government interference with their rights of expression, the Wisconsin Supreme Court ruled in 1987. Therefore, the court ruled a privately owned mall could prohibit an antinuclear dance troupe from performing on mall property. (Jacobs v. Major) Exclusive communities: Exclusive residential communities may pose similar problems for journalists. Access to these "walled communities" is usually controlled by security guards employed by the developer or property owners, and visitors must stop at the gate and obtain permission to enter. The communities resemble the "company towns" of past decades, and principles enunciated by the U.S. Supreme Court in the 1940s may be applicable. The Court said the First Amendment prevented the company that owned the town from limiting expression. Now, it is possible that developers or homeowners may not limit newsgathering. (Marsh v. Alabama) In cases challenging restrictions on distribution of printed material and on other forms of expression in such communities, courts have said that at the very least, such limitations may not be discriminatory. (Golden Rain Foundation v. Laguna Publishing Co.)
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