The fact that property is owned by the government does not necessarily make it a public forum. Courts allow greater restriction on speech and access on property that traditionally has not been open for general public use, such as courthouses, jails, government offices, city halls and public schools. This type of property is often referred to as non-public-forum public property. Government buildings and facilities: In general, governments may exclude the news media from property that is publicly owned if authorities can show that media access would interfere with the normal operations of the facility. The Supreme Court has held that the government, "no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated." (Adderley v. Florida) In 1983, the U.S. Supreme Court ruled that a federal law barring protesters from public sidewalks surrounding the Supreme Court was unconstitutional. It said, however, that the law could be applied to restrict picketing and leafletting on the Supreme Court grounds as well as in the building itself. Although the property is publicly owned, it has not been traditionally held open for the use of the public for expressive activities. (U.S. v. Grace) Following the bombing of the federal building in Oklahoma City, the General Services Administration issued a policy restricting media access to federal buildings. The directive instructed employees in federal buildings in New York, part of New Jersey, Puerto Rico and the Virgin Islands to deny access to the media unless they were accompanied by staff escorts. A federal District Court judge in Rochester, N.Y. criticized the policy as "singl[ing] out members of the media as deserving heightened security concerns whereas members of the public may enter the building and proceed to any of the offices in the building without restraint." The policy was changed to allow unescorted reporters access to the buildings; however, the restriction was left in place for photographers and camera crews. Schools: Access to public schools may also pose special problems. Generally, public school property is treated as non-public-forum public property, and regulations that restrict access but are designed to lessen interference with normal school activities would be constitutionally permissible. No state laws bar the media from school grounds outright, but individual school districts may have adopted regulations limiting access to school property. In June 1996 the California Attorney General's office issued an advisory opinion giving school administrators the authority to deny media access to school grounds. Ruling that "the constitutional right to gather information is not without limit," the Attorney General authorized exclusion of the media if their presence "would interfere with peaceful conduct of the activities of the school." (A.G. Op. No. 95-509) The opinion was unusual, considering that California law specifically exempts the news media from the definition of "outsiders" who must check with administrators before visiting schools. (Calif. Penal Code §§ 627.1, .2; Calif. Evidence Code § 1070) Even if access to school grounds is permitted, reporting activities may still be limited. For example, when a congressional candidate spoke at a high school in Auburn, N.Y., the school's principal allowed reporters to cover the candidate's speech but prohibited them from photographing or interviewing individual students. Restrictions may also extend to activities that take place outside school grounds. When a reporter attempted to interview students after a high school graduation ceremony that took place in the Forum building in Harrisburg, Pa., police arrested him for refusing to leave the building. Though the police later claimed that school officials had told them to bar the press from the event, charges against the reporter were dropped. Airports: In 1992 the Supreme Court ruled that public airport terminals are not public forums. Airports have not historically been made available for speech activity. Therefore, a "reasonable" regulation of expression is constitutional, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view, the Court said. (International Society for Krishna Consciousness, Inc. v. Lee) What constitutes a "reasonable" regulation concerning an airport is unclear. In cases involving the placement of newsracks in airports, a total ban on newsracks in a South Carolina airport and a requirement that newspapers in the Atlanta airport during the 1996 Olympics be sold only from city-owned, advertising-covered newsracks were both found to be unreasonable. (Multimedia Publishing Co. v. Greenville-Spartanburg Airport District; The Atlanta Journal and Constitution v. Atlanta Department of Aviation) The lesson from these cases might be that generally, regulations that create blanket restrictions without promoting some type of public interest are more likely to be found unreasonable. Prisons: Important news events often happen behind bars, and prison inmates themselves may be news makers. Reporters often need to visit federal and state prisons to interview inmates and observe prison conditions or executions. But although the public has a limited right of access to the prison system, the U.S. Supreme Court has consistently ruled that the media have no right to insist on interviewing specific inmates. Although inmates do not lose all their First Amendment rights, prisons may place some limits on their speech in the interests of prison administration and security. Similarly, the Supreme Court has upheld restrictions on journalists' access based on prison officials' arguments that media attention allowed some prisoners to gain "a disproportionate degree of notoriety and influence among their fellow inmates" and that such notoriety engendered "hostility and resentment among inmates who were refused interview privileges." Journalists, the court held, have "no right of access beyond that afforded the general public." (Pell v. Procunier; Saxbe v. Washington Post) But even though media access may not be constitutionally guaranteed, state law or prison policy may allow reporters to interview specific inmates. Before assuming your state does not allow access, call the state department of corrections (or the Bureau of Prisons for access to a federal facility) to find the specific requirements for and limitations on interviews and visits. Policies vary widely from state to state. Missouri imposed a temporary ban on press access in 1996. Once the ban was lifted, new regulations allowed each inmate to receive one visit per month from the media. Requests for additional interviews must be submitted to prison directors for evaluation regarding "security considerations." (Sidebottom v. Schriro) Corrections officials have considerable latitude in deciding whether a particular reporter may interview a particular inmate. In Virginia, for example, the policy of the corrections department is to consider reporters' requests on a case-by-case basis. Access is entirely at the discretion of the head of the state prison system. (6 VAC 15-30-1840) Furthermore, some states are attempting to grant different levels of access to different "types" of media. For example, Indiana's special provisions for news media access do not apply to "non-news media," including "independent film makers, writers for non-news magazines and others." (Admin. Proc. 00-03-101) The U.S. Court of Appeals in Atlanta (11th Cir.) ruled in 1988 that federal prison officials could deny an independent television producer access to a maximum security prison under a regulation stating that "representatives of the news media" are only those who are employees of news organizations. (Jersawitz v. Hanberry) The court said that the regulation reflected a legitimate government interest in maintaining security. If officials refuse an interview request, reporters still may be able to communicate with inmates by having their names added to the list of persons who may call, visit or write to a specific inmate. Regulations vary on how large the list can be and how long it may take to be added to it. For example, the William Donaldson Correctional Facility in Birmingham, Ala., only allows 10 people on each inmate's call list. Changes to the list can be made only once every six months, impractical for a journalist with a deadline. (Pope v. Hightower) Inmates in federal prisons can add names four times a year, and can have up to 30 names on their lists. However, wardens can bar additions to the list for the sake of "security or good order." (28 C.F.R. § 540). At one time, the Bureau of Prisons considered requiring potential outside contacts to undergo a background check before being added to a prisoner's phone list, but that rule was not included in the final version of the regulations. (Bureau of Prisons Proposed Regulation, 58 Fed. Reg. 39096-97) Prisons may also elect to offer no special access at all. For example, Arizona excludes all visitors except lawyers, family and friends. (DMO 89-21) Pennsylvania grants no special access right to members of the media. Reporters must register as "social visitors" and are subject to the same restrictions that apply to the general public. (37 Pa. Code § 91.5) Because Pennsylvania treats the media as members of the general public, reporters may not take tape recorders or cameras along when they visit inmates. California's regulations are even more restrictive, banning not only cameras and recorders but also pencils, pens and paper. (15 Calif. Code of Regs §§ 3141, 3261.5) Furthermore, in many states prison officials may legally eavesdrop on conversations between inmates and reporters and read inmates' mail. Access may also depend on the status of the inmate a reporter wishes to see. It may be difficult to contact inmates who have been placed in administrative or disciplinary segregation, though in federal prisons even inmates in special segregation can usually receive visitors. (28 C.F.R. § 540.) "Death rows" may also be governed by unique rules. For example, federal regulations bar press access to an inmate within seven days before his or her scheduled execution, except by permission of the prisoner and the warden of the facility. (28 C.F.R. § 26) Indiana also restricts access to inmates with scheduled execution dates, barring all press access prior to three days before the execution and limiting contact to a single member of a press pool. (Indiana DOC Admin. Proc. § 00-03-101) Executions: Executions are certainly newsworthy, but they present another prison access problem for journalists. The federal government and 38 states permit imposition of the death penalty. Regulations that provide for the presence of reporters and witnesses to executions vary from state to state. Some specifically mention the media, while others are more general. For example, New York's 1995 statute reinstating the death penalty instructs the state corrections commissioner to pick six witnesses to be present at an execution, but does not specify who those witnesses should be. The law in Washington state is also imprecise. Judicial officers, members of the press and representatives of the victim's and inmate's family are permitted to witness the execution. However, the law does not specify how many people from each category may attend and places no limit on the number of reporters who may be present. Other states' laws, however, are more specific. In 1994, Tennessee enacted a law that requires the commissioner of corrections to name three print representatives, two radio reporters and two broadcast reporters to cover any executions. Some states require that journalists must agree to a pool system as a condition of access. Oregon, for example, mandates that selected media witnesses must report to a media pool immediately after the execution and may not file their own reports until other members of the press are briefed. Reporters who violate this policy may be banned from any future executions. Like other states, Oregon's rule also restricts access by members of the press. Witnesses are only permitted to see the inmate after he or she has been confined to a gurney and all the intravenous tubes for the lethal injection are in place. In California, however, a federal District Court judge in San Francisco ruled in 1996 that the state must allow witnesses to observe executions from start to finish - from before the inmate is confined until shortly after death. (California First Amendment Coalition v. Calderon) No state statute allows the use of photographic or recording equipment during executions. In 1976, a broadcast reporter in Texas sought to film the first execution to take place under the state's new capital punishment statute. He argued that denying him use of his equipment was discriminatory because print media reporters were permitted to use pens and notepads, the tools of their trade. The U.S. Court of Appeals in New Orleans (5th Cir.), relying on Pell and Saxbe, ruled that the First Amendment does not require governments to make available to the press information not available to the general public. The court added that the ban on electronic recording devices was not discriminatory, because print reporters were not allowed to take photographs. (Garrett v. Estelle) In 1991, a U.S. District Court judge in San Francisco said reporters could not use cameras to record the first execution in California since 1967. The judge rejected a television station's request to videotape the execution, deferring to prison authorities who claimed that broadcasting the event might cause trouble among other California inmates. The judge also speculated that a camera might fall and break the shield between witnesses and the lethal gas. (KQED v. Vasquez) In June 1994, the U.S. Supreme Court in a one-sentence order denied an appeal by talk show host Phil Donahue and convicted murderer David Lawson to allow Donahue to videotape Lawson's execution in a North Carolina gas chamber. The appeal came after the request was denied by the North Carolina Supreme Court, which ruled that the plaintiffs did not have the right under either the state or federal constitution to tape the execution. (Lawson v. Dixon) Military facilities: Each branch of the U.S. military has its own broad guidelines regarding media access to bases. In addition, each base often has the authority to implement its own regulations. For that reason, it is best to call the individual base for its policy on press access. Generally speaking, most bases require that journalists be escorted by the base's public information officer. Often this requires scheduling an appointment in advance. Reporters have been denied access to events at military bases. A federal Court of Appeals in Washington, D.C. ruled in 1996 that regulations banning media from covering the arrival at military bases of the remains of soldiers killed abroad do not violate the First Amendment. The Department of Defense argued that freedom of speech and of the press do not create a right of access to government property simply because access could aid in reporting. In ruling for the government, the court said that the restrictions did not place a significant burden on newsgathering and did not "impede acquisition of basic facts, the raw material of a story." (JB Pictures v. Department of Defense) Military restrictions on the press may extend beyond the borders of permanent facilities. For example, in September 1997 the Pentagon declared a neighborhood in Baltimore a "National Defense Area" after the crash of an Air Force fighter jet. Residents were evacuated after the plane crashed during an air show flyby; they were not allowed to return to their homes for three days. Eight-foot-tall tarpaulins were erected around the plane to shield investigators as they searched for evidence of the cause of the crash, the Baltimore Sun reported. Two days after the crash, reporters and photographers were allowed access to the site although an armed Air Force security squadron stood guard and the plane was roped off to keep reporters at least 60 feet away, according to the Sun. A 1996 California Attorney General's opinion stated that police may exclude "unauthorized persons," including members of the news media, from military air craft crash sites and "recover" photographs that may have been taken of classified materials. (66 Op. Att'y Gen. 497) Civic centers and stadiums: When municipal property is used for a commercial rather than governmental purpose, the media may have no special right of access beyond that afforded the general public. Generally, this means that journalists who wish to photograph or record news such as concerts or sporting events may be prohibited from doing so even if the venue happens to be owned by the government. In one challenge to such regulations, NBC sued after it was denied access to the Miami Beach convention center during the July 1987 convention of the Communications Workers of America, at which several presidential candidates were scheduled to speak. A federal appellate court found that the city's leasing of its convention center to a labor union which refused to admit the television broadcaster is not a "sufficiently intertwined, symbiotic relationship" to constitute state action and therefore give rise to First Amendment protections. (National Broadcasting Co. v. Communications Workers of America) A federal District Court in 1981 rejected a television station's challenge to an event organizer's refusal to permit it to do spot coverage of a figure skating championship at the Hartford, Conn., Civic Center. The promoter of the event had leased the facility from the city and given ABC the exclusive right to cover the event. The court held that although the civic center was municipally owned, the First Amendment was not implicated. Because the city was participating in a commercial venture when it leased the center, it was not operating in a governmental capacity and was therefore free to exclude journalists from the premises. (Post-Newsweek Stations Inc. v. Traveler's Insurance Co.) A federal court in Providence, R.I., reached a similar conclusion in 1986, affirming the city civic center's authority to keep cameras out of rock concerts held at the center. Concerned that the center's ability to generate revenue would be limited if it could not honor performers' requests for camera bans, the court found that the center was acting in a proprietary capacity and upheld the restriction. (D'Amario v. Providence Civic Center Authority) However, in 1987 a federal court in Cleveland ruled that a state Democratic Party organization holding a convention in the Cleveland Civic Center could not admit some journalists, while barring others. The court held that, even though the facility was leased to a private organization, the private group was still bound by the same rules that applied to the use of municipal property for government functions. (National Broadcasting Co. v. Association of State Democratic Chairs) The same rules would apply to sports stadiums. The right of officials to deny access will depend on ownership and lease agreements for particular events. However, some independent reporters who publish their own papers have encountered opposition on public sidewalks outside of stadiums. In these cases, the general right of access to public property dictates that these publishers have a First Amendment right to sell their newspapers on the sidewalks. State legislatures: Although 45 states and the District of Columbia have laws or constitutional provisions making the state legislature open to the public, journalists continue to encounter lawmakers who attempt to deny or limit access to the floor. In one instance, Mark Flatten, a statehouse reporter for Tribune Newspapers of Arizona, was ejected from the floor of the Arizona House of Representatives by House Speaker Don Aldridge. Although Aldridge refused to give a reason for his action, he purportedly was unhappy about a story Flatten wrote about the speaker's relationship with Max Dunlap, who is serving a prison sentence for the car-bomb murder of Arizona Republic reporter Don Bolles. The Associated Press quoted Aldridge as saying that the story should have run as an editorial. Flatten was issued new press credentials as the Tribune's attorneys were preparing to file a lawsuit claiming that the denial of Flatten's credentials violated his First Amendment rights. Actions to bar journalists from the legislature can be challenged under the federal constitution, state constitution or state open meetings law. The First Amendment may give reporters a right of access to public legislative proceedings. Journalists seeking access to meetings of public bodies have had some success in citing a series of court decisions establishing the right of the news media and public under the First Amendment to attend criminal judicial proceedings. In March 1988, a federal district judge in Cleveland ruled that "existing case law and good sense" compel the conclusion that the First Amendment makes the legislative process available to the press and public except where a "compelling public interest" justifies closure, and then only to the extent that the interest is served. (WJW-TV v. City of Cleveland) Many state constitutions contain a provision granting access to the legislature. In addition, several state open meetings laws provide that the legislature is open. However, the fact that a law requires the legislature to hold open meetings may not mean that all sessions are public. Courts may be reluctant to interfere with internal workings of the legislature because they are concerned that judicial action would violate separation of powers principles. In most states - all but five - a state constitutional provision or open meetings law declares that the legislature is open to the public. However, the legislature is often allowed to close its sessions in certain circumstances. For example, closure may be constitutional when the meeting "ought to be kept secret" (Arkansas), when "public security" is required (Michigan), or when the "welfare of the state requires otherwise" (Vermont). In addition, the state open meetings law may enumerate conditions under which the legislature may be closed. In the District of Columbia, Illinois, Montana, New Mexico, North Dakota and Oregon, the state constitution or open meetings law specifies that the legislature is open, and neither the constitution nor the open meetings law provides any exceptions to the general grant of access. The open meetings law in three states - Alaska, Hawaii and Oklahoma - specifically excepts the legislature from its ambit. In Kentucky and Massachusetts, neither the state constitution nor the open records law addresses access to the legislature. In some states where the constitution permits closure, the legislature may have enacted a provision in the open meetings law making their sessions public. Or access may be governed by administrative rules adopted by each house. Ultimately, whether the news media have access to a legislature may be a matter of custom and practice. Reporters will not automatically be excluded in those states whose constitutions or open meetings laws do not specifically address access or in those states in which the legislature is specifically excepted in the open meetings law. Remember that access to the legislature does not necessarily mean access to all areas of the floor. For example, reporters who cover the Pennsylvania Legislature were told by leaders of the House of Representatives in December 1996 that a press gallery in the front of the chamber would be moved to a rear balcony. Ostensibly, the new policy was designed to reduce crowding and disruptions on the House floor.
Many states have restricted media access to prisoners, often citing what
they describe as the "celebrity" status that inmates like Charles Manson,
shown here with Geraldo Rivera, receive.
Media attendance at executions is common, but
prisons limit the number who can attend, and
do not always allow the media witnesses to
view the entire procedure.
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