Attacking access problems

Regardless of whether news occurs on public or private property, if you ignore police orders regarding access you risk arrest and prosecution. Case law makes clear that police can limit media access when they believe such restrictions are needed for public safety or to prevent interference with an investigation, and that the First Amendment does not provide immunity from criminal sanctions for disobeying police orders.

However, courts often acknowledge after the fact that a reporter or photographer should have been granted access to a particular scene. An Associated Press photographer who was charged with interfering with the arrest of a homeless man saw the charges dismissed when the judge ruled that the photographer had a legitimate purpose in photographing the arrest. The photographer, Charles Palla Jr., later sued the police and city for violating his civil rights by arresting him. In 1996, a jury awarded him more than $100,000 in damages, finding that the police had arrested him without probable cause and that the city had condoned the arresting officer's misconduct. (Palla v. Pittsburgh)

You and your news organization can minimize restrictions on access to crimes, accidents and disasters.

But it is very hard to do this in the middle of an ongoing investigation or rescue. You rarely will accomplish anything by arguing with a police officer at the scene or a shopping center manager concerned that bad publicity will hurt merchants.

Your news organization should have a "battle plan" for dealing with such situations before they develop, providing names of police officials and other contacts who may be able to facilitate access to the area and legal advisers who should be called. More importantly, however, you should develop a good working relationship with police officials.

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.

The plan should tell you what to do if you are ordered to keep out by police or property owners -- whether to stand your ground and risk arrest or a suit, or to depart.

If an event occurred on private property, you need to know how your state's courts have resolved the issue of consent. For example, have they ruled that consent will be implied in the absence of explicit orders to leave, that you must obtain explicit consent or have they taken some middle position?

If someone other than a government official orders you to leave, try to determine whether that person is the owner or has authority to act in the owner's behalf. For example, if a crime has occurred in a shopping mall outside a particular store, the mall manager may have authority to order you to leave. But the owner of the store probably cannot prevent you from covering the event.

Be aware that courts are more likely to hold you liable for trespass or invasion of privacy if the property at issue is a dwelling, rather than business or commercial property.

The Reporters Committee will try to answer questions concerning access to places. Journalists should call our legal defense hotline at 1-800-336-4243.