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Zero access adds up to prior restraint

CNN wins a court order after military officials overseeing Katrina relief efforts attempt to muzzle the press. From the Fall…

CNN wins a court order after military officials overseeing Katrina relief efforts attempt to muzzle the press.

From the Fall 2005 issue of The News Media & The Law, page 8.

By Melanie Marquez

As military presence increased in the immediate aftermath of Hurricane Katrina, so did the number of checkpoints, roadblocks and, ultimately, news gathering issues. Some confrontations between journalists and officials turned physically aggressive. (See Timeline, pages 6-9.) But it was an attempt by authorities to restrict whether photographs of the dead should be taken, or their recovery even reported, that ended up in federal court.

On Sept. 9, 11 days after Katrina pummeled the Gulf Coast, retired Marine Col. Terry J. Ebbert, director of homeland security for New Orleans, said the press would be barred from covering the collection of dead bodies. In the same press conference Army Lt. Gen. Russel Honore, overseer of the federal relief effort in the city, announced a “zero access” policy for news media.

First Amendment lawyers working for CNN sprang into action, filing suit against the Federal Emergency Management Agency and requesting a temporary restraining order from a federal judge in Houston.

CNN argued that the “zero access policy” amounted to prior restraint and violated the First Amendment. Calling the ban “a naked restraint on publication based on its perceived content,” the suit cited a 1990 New Hampshire case, Connell v. Hudson, in which a federal court found that city police violated the First Amendment when they ordered a photographer to stop taking pictures of an accident scene.

In the initial hearing in the CNN case, U.S. District Judge Keith P. Ellison said, “based on the facts as pleaded, that’s all I have, it looks like a prior restraint to me. I cannot authorize that.”

Ellison granted the request for a temporary restraining order, saying, “my order is unambiguous, I don’t want any prohibition of press coverage until there’s some demonstration &#151 and a very strong demonstration &#151 by the government as to why First Amendment rights need to be interdicted like this.”

Instead of demonstrating how the agency’s interests trumped First Amendment rights, FEMA officials reversed course.

The reversal, announced by U.S. Attorney Keith Wyatt in a second emergency court hearing on Sept. 10, said that Joint Task Force Katrina, the coalition in charge of emergency response after the storm, had “no plans to bar, impede, or prevent news media from their news gathering and reporting activities in connection with the deceased Hurricane Katrina victim recovery efforts, including access to the sites, photographing or reporting.”

That mandate trickled down slowly. Two days later an Army captain with the 82nd Airborne Division accused a CNN reporter of forging the revised task force policy, said David Vigilante, chief counsel to CNN. The incident, coupled with rumors of other access issues, spurred CNN to return to court where Vigilante said in a third hearing Sept. 12 that members of the division built a wall of vehicles and people, blocking access to the scene.

“I’m not happy about one policy being announced in court and another being effectuated on the ground. Please tell whomever you speak with that if this continues, I mean, there will be contempt citations and there will be fines issued,” Judge Ellison told Wyatt, according to a court transcript.

Ellison later said that if Gen. Honore “is serious about the intent of the communication that was read to the court Saturday morning, he should by now, almost 60 hours later, have had ample opportunity to notify everyone on the ground as to what the policy is.”

Following the third hearing, CNN did not face further access issues, or at least none that could not be handled immediately, Vigilante said.

Quick court action helped to “stake out our position early once that statement was made by the general,” Vigilante said. “We needed to immediately get the court involved, otherwise the story you want to cover is gone.”

CNN wasn’t the only news agency facing restrictions amid the slow communication of the new policy to forces on the ground. Also on Sept. 12, a reporter and photographer from the San Francisco Chronicle were told by a member of the 82nd Airborne Division that their credentials would be yanked and they would be kicked out of Louisiana if they wrote or took pictures of body recovery.

Public affairs policy in the wake of Hurricane Katrina was a work in progress with “a certain amount of learning on the fly” that had to be done, said Army Major Paul Swiergosz, a Department of Defense spokesman.

Federal forces are trained to fight wars, not deal in humanitarian relief, and were therefore caught without guidelines for photographing dead bodies, Swiergosz said.

“To everyone’s credit for the most part that was really the only hiccup,” he said, referring to restrictions on media access.