From the Summer 2009 issue of The News Media & The Law, page 29.
In the early morning hours of Feb. 3, a group of environmental activists entered the grounds of the Beetree Surface Mine near Marsh Fork, W.Va., to protest the practice of mountaintop removal mining. The protesters chained themselves to a piece of mining equipment and unfurled a banner calling for the replacement of surface mining with wind turbines.
Photojournalist Chad Stevens did what journalists do: He followed the protesters onto the property to take pictures of the news.
Nobody interfered with him while he was there, said Stevens, who is working on a documentary about the effort to stop surface mining in favor of wind energy. When the police managed to unchain the protesters and arrest them, he said a state trooper offered him a ride off the mountain. But when they got to the police station, Stevens ended up with a trespassing citation just like the protesters.
A few weeks later, Antrim Caskey, another independent photojournalist, followed a different group of protesters onto a different surface mine also on Coal River Mountain, owned by the same mining company, Massey Energy Co. Just like Stevens, she ended up with a criminal citation for trespass. The coal company brought civil actions against both photographers — treating them the same as the protesters — to keep them off the mining sites indefinitely.
Stevens and Caskey have been saddled with an injunction in civil court barring them from Massey property.
When journalists trespass
Now the photographers are faced with tough decisions during a summer of surface mining protests in West Virginia. And their dilemma raises an age-old question for journalists when news happens on private property: What happens when a reporter trespasses to follow the news?
The answer is somewhat murky, though it’s certainly clear journalists don’t have a privilege to trespass.
“In terms of First Amendment defenses, there unfortunately is not a lot to point to,” said Erik Ugland, media law professor at Marquette University’s Diederich College of Communication.
The Supreme Court said in Branzburg v. Hayes that without some protection for newsgathering, freedom of the press could be eviscerated. Ugland pointed out that the court never developed the concept further, though.
“It sounds nice, but they haven’t fleshed out the meaning of it,” Ugland said.
In Cohen v. Cowles Media Co., a 1991 case in which a newspaper was sued for breach of contract after breaking a confidentiality agreement, the Supreme Court ruled that the First Amendment does not protect journalists from laws of “general applicability” that don’t specifically target the press. Since then, the principle has been carried over to trespass cases, such as Food Lion v. ABC, a 1999 case from the federal court of appeals in Richmond, Va.
That doesn’t necessarily mean a defense doesn’t exist. It’s just more technical than constitutional, said Robert Bastress, a law professor at West Virginia University College of Law, who is representing Stevens pro bono.
“The arguments we made — and remain — are about what is a trespass,” Bastress said, referring to a civil injunction hearing in the case held in June. “It really wasn’t a trespass. He had not been given notice, he didn’t see any signs. It’s really a technical argument against the state trespass law. . . We’re not necessarily conceding that he was trespassing, despite the fact that he was there.”
Journalists can also argue that the harm done by the trespass, provided the reporter didn’t actually damage the property, is too minimal to warrant a penalty, Ugland said. The journalist isn’t there with the intent to interfere with the property; essentially he or she is there to act as a public servant reporting the news, and there is no reason to award any kind of damages when there is no harm suffered.
But finding a right for reporters to trespass is tough, Bastress said.
“It’s a very slippery slope to say that one engaged in First Amendment activity has a defense to laws of general applicability,” Bastress said. The classic example, he said, is the protester who burns a draft card in a jurisdiction where destroying a draft card is a crime. The protester is still liable for the act, even though it was done as expression.
At the scene of an emergency event, such as a fire or a car wreck, journalists may have a little more leeway. In situations where the custom and practice is to allow reporters to follow emergency personnel onto private property, courts have found that a trespass didn’t occur. In other cases where the press has been given direct permission from emergency officials to come onto private property, journalists have a better defense.
“If law enforcement or other state officials give permission, that might help,” Ugland said. When permission is given, even by law enforcement and not the property owner, it is unlikely that a journalist will be convicted of a criminal trespass because it’s hard to prove criminal intent, an important element of the crime.
That doesn’t stop a civil trespass claim, though in many cases courts have found that there is minimal to no damage if the journalist did not harm the property. Ugland’s research turned up more than 130 cases where courts awarded minimal or no damages against trespassing journalists.
“Normally, judges are not inclined to impose, in either criminal or civil cases, sanctions,” Ugland said. “Unless there was some repeated attempt or it was an extraordinary situation where they damaged the property.”
There is still an open question about whether journalists could be liable for claims under the Fourth Amendment when riding along with police and entering private property. In companion cases — Wilson v. Layne and Hanlon v. Berger — the Supreme Court left that question open while finding that accompanying media did create a Fourth Amendment claim against law enforcement agencies serving search warrants.
The chilling effect
With the injunction hanging over them, each journalist in the West Virginia case has been left to decide whether to follow the protesters back across mining company property lines during a summer when activists are making a point of protesting frequently.
“It’s an indirect way of suppressing their reporting on the issue,” Ugland said. “But that’s not to say there is no legal ground to do it. Even though the journalists are on good ethical ground, they still don’t have a right to violate the law.”
Stevens said the injunction is at the back of his mind when he’s covering mining protests in West Virginia.
“I think this whole process is a deterrent, at least for an independent journalist,” Stevens said. “And I think that’s what Massey wants. I couldn’t say I wouldn’t go on Massey property again.”
That happened for Stevens in June during a major protest when activists intended to march up to one of the Massey mines. They didn’t get there because the road was blocked by a gathering of miners.
“It’s something I have got to ask myself: Do I cross the bridge (to the coal mine)?” Stevens said. “If I get arrested, that’s contempt of court and potentially jail time. I probably would’ve. But it didn’t happen and fortunately I didn’t have to go to jail.”
For Caskey the decision was relatively easy. She’s been back on mining property several times.
“It’s not a deterrent at all,” Caskey said. “In fact, it’s a signal that I’m doing the right thing, that my work is having an effect on the coal company. It actually inspires me.”
Because Caskey went back on mining company property, she picked up additional citations and a contempt of court order for violating the injunction. The contempt citation comes with a $500 fine, which Caskey is appealing to the West Virginia Supreme Court.
As independent journalists, though, Caskey and Stevens are working without the safety net of a media company to defend them. And that makes the decision more difficult, Stevens said.
“It really is, to a great extent an ethical and journalistic choice for the photographers as far as how aggressively they want to pursue it,” Ugland said. “They’re sort of out their on their own.”