Access to election polling places -- Access to private property -- Access to shopping malls

Access to election polling places

Several states have exit-polling laws that prohibit reporters from interviewing voters within specified distances of voting places. But a federal court found the Washington state exit-polling law unconstitutional because it had been passed specifically to prevent the media from projecting the outcome of elections.11 A Minnesota judge struck down an exit-poll statute forbidding reporters to question voters about ballot issues as a content-based restriction on speech about governmental affairs.12 Although Florida’s Supreme Court said the state generally had the power to deny access to polling places in order to prevent disruptions, the court found that officials had not substantiated their claims that exit polling actually disrupted voting.13

A Nevada federal court granted media a permanent injunction against a Nevada statute that banned exit polling within 100 feet of polling places on election days, finding the law unconstitutional.14 State government attempts to outlaw exit polling have also been stricken down by courts in Florida, Minnesota, Ohio and South Dakota.

 

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.15 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.”16

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 it 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 2001.17

In 2010, the Biography Channel and its parent company faced federal lawsuits over alleged civil rights violations that occur during police ride-along programs. The suits are over a show called “Female Forces” that follows female officers with “brains, beauty and a badge” as they patrol the suburbs of Chicago. In one of the cases, a U.S. District Court judge in Chicago ruled the cable network may have violated a woman’s civil rights by broadcasting her likeness and identity during an episode of the reality series, violating her Fourth Amendment protection against unreasonable search and seizure.18

Reporters should consult their 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.19

 

Access to shopping malls

Private property that is open to the public, such as shopping malls, may be treated the same as public forums.20 In 1980, the Supreme Court said that state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. It upheld a state’s right to provide a broader right to engage in expressive activity in a shopping mall, even at the expense of the owner’s property interest.21

Since the Court’s decision, several state appellate courts have ruled on questions of freedom of expression in shopping malls. In 1994, the New Jersey Supreme Court ruled that shopping malls have taken the place of downtown districts as areas for free-speech activities. The court allowed leafleting by activists, but ruled that private property owners may impose restrictions on the time, place and manner of protests.22

At least two state high courts have ruled that there is no constitutional right of access to shopping malls. In March 1999, the Minnesota Supreme Court held that neither the state nor the federal constitution allowed picketers to protest in a mall that was created partially with public money because no “state action” is involved in operating the mall. In July of the same year, the Georgia Supreme Court determined that the state constitution does not create “a constitutional right of access to private property,” and thus malls can ban soliciting or leafleting in their common areas.23

However, even the states that have recognized First Amendment interests in activities at shopping malls have not ruled directly on reporters’ rights to gather news in such places.


Notes:

11. Daily Herald v. Munro, 838 F.2d 380 (9th Cir. 1988).

12. CBS Inc. v. Growe, 15 Med.L.Rep. 2275 (D. Minn. 1988), see also National Broadcasting Co. v. Cleland, 697 F.Supp. 1204 (N.D. Ga. 1988), CBS Inc. v. Smith, 681 F. Supp. 794 (S.D. Fla. 1988), National Broadcasting Co. v. Colburg, 699 F. Supp. 241 (D. Mont. 1988), Journal Broadcasting of Kentucky v. Logsdon, No. C88-0147-L(A) (W.D. Ky. Oct. 24, 1988), National Broadcasting Co. v. Karpan, N. C88-0320-B (D. Wyo. Oct. 21, 1988), Charleston Television Inc. v. Charleston County Election Commission, No. 88-CP-10-4860 (S.C. Sup. Ct. Nov. 7, 1988).

13. Firestone v. News-Press Publishing Co., 538 So.2d 457 (Fla. 1989).

14. ABC Inc. v. Heller, 35 Med. L. Rep. 1038 (D. Nev. 2006).

15. 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).

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

17. 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).

18. News Media Update, “Biography Channel faces lawsuits over aired ride alongs, ” May 21, 2010, available at http://www.rcfp.org/newsitems/index.php?i=11440

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

20. Marsh v. Alabama, 326 U.S. 501 (1946).

21. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980); see also Lloyd Corp. Ltd. v. Wiffen, 307 Ore. 674 (1989).

22. New Jersey Coalition Against War in the Middle East v. JMB Realty, 650 A.2d 757 (1994).

23. Minnesota v. Wicklund, 589 N.W. 2d 793 (Minn. 1999); Cahill v. Cobb Place Associates, 519 S.E.2d 449 (Ga. 1999).