What to do if you are denied access -- Civil remedy for denials of access

What to do if you are denied access

• If you are denied access to a place where a news event has occurred, you should determine whether the place is a public forum (such as a city street or park), a nonpublic forum public property (such as the county courthouse or jail) or privately owned property.

• Find out who has denied access to you and the grounds for denial.

• If the property is publicly owned and the restriction appears to be discriminatory, consider seeking a court order requiring that you be granted access or ordering officials not to deny access in similar situations in the future.

• If the property is privately owned, and the restriction was imposed by someone other than the owner, it may be invalid.

• If you are ordered to leave by the property owner, do so and contact your editor or news organization’s lawyer. Independent reporters may contact the Reporters Committee. Disobeying an order to keep out may result in your arrest, a fine or a lawsuit by the owner.

• If police in your area have press relations guidelines, find out what they say. If police issue press passes and grant access only to reporters who have them, obtain a pass.

• Establish a “plan of attack” for dealing with access problems before they develop, providing names of legal advisers to be called and police officials and other contacts who may be able to facilitate access to the area.

 

Civil remedy for denials of 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 as 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 civil rights violations by government officials. The right to sue a federal official for civil rights violations — called a Bivens action — has been implied from the Constitution itself.24 Whether denying access is a First Amendment violation takes into account both history and the role of public access.25 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 government official acting “under the color” of law, but this doesn’t mean an official must 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.26 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’ notes, film or video.


Notes:

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

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

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