From the hotline

From the Winter 2002 issue of The News Media & The Law, page 38.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, answer questions we get from journalists.

Q: The police chief in the city I cover won’t issue press credentials without first fingerprinting reporters and doing a criminal background check. Is this legal? How can reporters fight this?

A: Two media lawyers offer their advice on how reporters should respond to this situation:

James E. Stewart, Butzel Long, Ann Arbor, Mich.: I suppose in these times we can appreciate the chief’s desire for increased security in general. However, to paraphrase Justice Frankfurter, by enacting these press credential conditions, the chief is burning down the house to roast the pig.

I would try to have a meeting with the police chief or, if that is unsuccessful, a meeting with the mayor, city manager or city attorney. I would take the following general approach.

The city should understand that these conditions on press credentials could be constitutionally suspect. Generally speaking, I would emphasize that the courts have recognized that a journalist’s interest in obtaining a press pass is protected by the First Amendment. Further, I would take the position that a restriction or conditions on press credentials requires a showing that there is compelling governmental interest for these conditions and that the conditions or restrictions are narrowly tailored to advance that compelling governmental interest. See generally Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (holding that an attempt to withhold White House press passes from bona fide journalists had to be based on a compelling government interest).

Security for public officials, employees and government buildings could well be a compelling governmental interest — especially in the post-September 11 world. However, conditions you describe do not seem narrowly tailored to advance that interest. It is difficult to imagine that the city would, for example, require Tom Brokaw or a long-established and respected reporter for the local newspapers to be fingerprinted and checked. The proper and constitutional course is for the police chief to require fingerprinting and background checks only as to those people he feels present a potential source of security concerns.

A final point may be worth considering. I suspect that nothing prevents the police from doing a criminal background check of anyone applying for a press pass. For example, Sherrill noted that it was routinely done in connection with White House press credentials. Thus, if the results of such a check are the basis for denial of access, the government would be required to provide notice of its action, the factual basis for its action and a chance for the reporter to rebut that decision.

In sum, the police are free to do such checks but must provide due process if they intend to act on them. Accordingly, in my view, you may want to focus your “fight” on the fingerprinting requirement, which is unnecessary, overbroad and offensive.

Jon L. Fleischaker, Dinsmore & Shohl, Louisville, Ky.: While this procedure seems offensive, it may be legal, depending on its implementation and administration.

Those of us involved on a daily basis with the media tend to view any restriction on the press and reporters as an affront to the First Amendment. Yet, the First Amendment does not preclude security measures, if equally applied to all, including reporters and others, such as lobbyists, who seek access to press conferences and other events to which the public at large does not have access.

However, the First Amendment does prohibit the government and public agencies, including the police, from engaging in content-based restrictions on free speech and freedom of the press. If your police chief is targeting only reporters (as opposed to others seeking access to the same events or facilities) or certain reporters or certain newspapers, or only a particular type of outlet, the answer to your question is quite different.

For example, if your police chief forces reporters from a liberal, politically oriented newspaper to submit to fingerprinting and criminal background checks but does not have the same requirements for reporters from a conservative, more mainstream newspaper, then the background check requirements appear to be a content-based restriction, which is prohibited by the First Amendment.

A legal challenge to this type of restriction has a much higher likelihood of success. Courts have routinely held that content-based restrictions such as this violate the First Amendment.

Q: Can a reporter be barred from a city council fact-finding bus tour when there is a quorum and where it is likely council members will discuss issues regarding future legislation?

A: A reporter generally cannot be barred from a city council fact-finding bus tour, but this is an issue that varies among states.

In most states, there is a meeting whenever a governing body discusses agency business — even if no decisions are made. Under this theory, a fact-finding session, regardless of the place it is held and whether it’s formal or informal, would be subject to the open meetings law in the state, so long as there is a quorum present.

However, the legislatures of a few states, such as Oregon and Tennessee, have statutorily exempted on-site inspections of projects or programs from the definition of “meeting.” In other states, such as Ohio and Virginia, the courts have determined that fact-finding sessions do not qualify as meetings or discussions and are exempt from the open meetings acts.

See the updated 2001 version of Tapping Officials’ Secrets, a state-by-state compendium summarizing open records and open meetings acts at www.rcfp.org/tapping.