Newsworthy events such as arrests, fires or demonstrations frequently occur on private property. But property owners or police sometimes deny journalists access to homes, businesses, and even seemingly public places such as shopping centers and privately owned housing developments. Even when reporters gain access without being stopped, they can be arrested for trespass and property owners may sue them after the fact, seeking damages for trespass or invasion of privacy. (Even though this is an access guide, some of the privacy cases will be discussed because they can create new standards of allowable access to property, although they don't directly interfere with the gathering of news.)
The U.S. Supreme Court has not yet considered whether the media have the right to follow news onto private property. Lower courts that have examined the issue have rendered widely varying opinions.
Courts frequently focus on whether the media had consent either from the owner or from law enforcement officials to enter the property to gather news. When reporters receive explicit consent, they should have little or no problem gaining access or defending coverage from any trespass and privacy suits.
In many cases, journalists enter without asking permission and the owner is not present to object, or is present but fails to voice objection. The court must then determine whether the owner's silence amounted to "implied consent."
Reporters do not have a right to knowingly trespass just because they are covering the news. When Bryon Wells, a reporter for the East Valley Tribune in Phoenix, Ariz., ignored a "no trespassing" sign, opened an unlocked gate and rang a former police officer's doorbell in November 2003, he was charged with criminal trespass, even though he immediately left when the officer's wife told him to. A Superior Court judge ruled in July 2004 that the First Amendment didn't protect Wells. "Reporters who are in violation of a criminal trespass statute are not exempt from prosecution simply because they are exercising a First Amendment right," the judge wrote. (Arizona v. Wells)
Problems also occur when deception is used to gain access to a private place. Two producers for ABC's PrimeTime Live were able to enter the "employees only" sections of a Food Lion store by obtaining jobs based on falsified credentials, rather than identifying themselves as reporters and asking for consent. The resulting story reported unsanitary food handling practices at the store. Food Lion sued for fraud and trespass, alleging that the journalists were guilty of wrongdoing based not on what they reported but instead on the "deceptive" means used to gather information. The store initially won a $5.5 million jury verdict in January 1997, and while the U.S. Court of Appeals in Richmond (4th Cir.) upheld the claims for trespass and breach of a duty of loyalty, it found that those acts had not caused any damage and awarded Food Lion only two dollars. (Food Lion v. Capital Cities/ABC)
"Ride-alongs," in which journalists accompany law enforcement officers during searches and arrests, present unique problems. Because ride-alongs often involve news that happens on private property -- especially private residences -- journalists need to take care to get the proper consent from the appropriate people.
Courts differ on what kind of consent to enter is required. Some courts have stated that the owner's silence alone is enough to imply consent. Others have found that police permission is sufficient if the owner is not present and cannot be asked for consent.
In Florida, an invasion of privacy suit was filed against The (Jacksonville) Florida Times-Union over a published photograph of the "silhouette" left on the floor by the body of a 17-year-old girl killed in a house fire. The local fire marshal and a police sergeant investigating the fire invited the news media into the burned-out home to cover the story.
In court the officials testified that their invitation was standard practice. The property owner, the victim's mother, was out of town at the time of the fire and therefore could not be asked to consent. The Florida Supreme Court agreed with the media that they had implied consent to enter the house based on the common practice of reporters entering private property without the owner's explicit consent in the course of covering crimes or disasters. However, the court added that if the owner had been present and objected to the reporter's presence then the reporter might have been held liable for invasion of privacy. (Florida Publishing Co. v. Fletcher)
Other courts have ruled that consent may never be implied. For example, a Rochester, N.Y., Humane Society investigator obtained a search warrant to enter a private home where he suspected animals were being mistreated. Before going to the home, the investigator called three television stations and invited them to accompany him. Two news teams entered with the investigator over the objections of the owner. They filmed the interior of the house and broadcast the story on the evening news.
When the owner sued the media for trespass, a New York state appellate court held that "the gathering of news and the means by which it is obtained does not authorize, under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice." The court also compared the case to the previous case in Florida, finding the Humane Society investigation less newsworthy than a fire that claimed the life of a young person. Further, the court noted the property owner's vociferous objections to the presence of the journalists. (Anderson v. WROC-TV)
However, courts are divided about whether as a rule ride-alongs -- or more specifically, those parts of the ride-along that involve entering private property or a residence -- violate property owners' Fourth Amendment right to freedom from unreasonable searches. Even though the journalists themselves may not be liable for alleged violations, the Fourth Amendment may still represent a barrier to ride-along coverage of investigations. If officers fear that the media's presence will lead a court to reject evidence from a search or find the officers liable for violating the subject's civil rights, they will not give journalists permission to accompany them.
However, the limitations of search warrants do not automatically exclude the press. When the owner of an animal shelter in Sanilac County, Mich., sued sheriff's deputies who allowed a camera crew from a TV station to accompany them on a search of the shelter and a private residence, the court held that because the search warrant specifically granted permission for videotaping and photographing, the owner's rights had not been violated even though the warrant itself said nothing about the TV news crew. (Stack v. Killian)
Journalists should be aware that in some cases, notably one involving a CNN camera crew that followed a federal Fish and Wildlife Service crew on a raid of a ranch, courts have held that when the media's actions are too "intertwined" with the officials' actions, the reporters become "joint actors" who can themselves be liable for improper searches. CNN settled the case with Montana ranchers Paul and Erma Berger in 2001 for an undisclosed amount. (Berger v. CNN)
In the end, journalists need to be concerned and aware any time they enter private property without an invitation or the permission of the owner.