From the Winter 2008 issue of The News Media & The Law, page 21.
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys discuss the latest hot-topic questions.
Note: The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.
Q: I am trying to work out the details surrounding the interview of a known, single member of a terrorist organization (e.g., Hamas). And I am wondering whether paying the interviewee some nominal fee for his participation in the interview may be a violation of the USA PATRIOT Act. Also, would it be in violation of any law to fly the individual to a more neutral location in order to conduct the interview on safer grounds?
A: Most journalists would object to the practice of paying for an interview as an ethical matter. "Checkbook journalism" has long been dissuaded by most members of the media. Aside from ethical considerations, however, you would want to think about the legal implications of such action.
Hamas is one such terrorist group that has been recognized by the government as an official "foreign terrorist organization" (Executive Order 12947, Jan. 24, 1995) and as a result, any "material support" or "resources" provided to any member that organization is illegal under 18 U.S.C. § 2339B.
What is classified as "material support" or "resources" is not entirely clear; however, in this anti-terrorism climate, it might be a safe assumption that direct compensation would be enough to garner a criminal charge for violation of the statute. Even footing the bill for travel costs alone may be enough to be considered a violation of the law, though that is less clear.
Q: My local police department has refused to release initial incident reports or even its daily blotter, citing the expense the department and municipality would incur if they did so. Particularly if the department needs to pay an attorney to review reports for exempted material, can the department withhold these documents using expense as an excuse?
A: Most likely not. In most states, while police investigatory documents are exempt from disclosure, initial incident reports and blotters are public record.
In many, if not most states, open records statutes mandate the disclosure of initial incident reports and blotters regardless of the necessity for attorney review and accompanying expenses.
Even if the municipality has become lax and not budgeted for such requests in the past, the municipality has a duty to comply with the law and adjust its budget accordingly.
Q: While I was videotaping a storefront in a mall for an investigatory report, the general manager of the indoor mall had security escort me out of the building. I had the permission of the store to record video, but was standing in the mall while taking the shot. Can the mall manager really kick me out?
A: In most jurisdictions, the manager is within his rights to ask you to leave the building.
The Supreme Court has held that although most malls are generally open to the public, they are still private property and mall owners and their agents have the right to determine who comes onto their property and what they do there.
However, courts in a small number of jurisdictions — California, Colorado, Florida, Massachusetts, New Jersey, North Carolina, North Dakota and Oregon — have used state constitutional protections to indicate that individuals maintain at least limited free speech rights in shopping malls.