Transcript 1 - ozminkowski

Access to Places and Information
The First Amendment Protection of
News Gathering
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Limited Protection:
There is no guarantee of access
There is no special protection for media actions
/ work
“The First Amendment does not provide a
license to violate valid criminal law”
Lawrence Matthews case (1998)
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A U.S. District Court in Maryland refused to
dismiss charges of transporting and receiving child
pornography against a free-lance journalist.
Matthews argued that he was gathering news, not
child pornography
The Court: “The First Amendment does not
grant the press automatic relief from laws of
general application.”
Hunting the stars
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http://www.theatlantic.com/doc/200804/britney-spears
http://www.theatlantic.com/doc/200803u/celebrity-photos-slideshow
Articles from The Atlantic (April 2008)
http://x17online.com/
Photographers arrested
for reckless driving
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LOS ANGELES (Reuters). JAN 17, 2008
Four photographers were arrested for reckless
driving after a late night car chase of pop star
Britney Spears on the outskirts of Los Angeles,
police said on Thursday.
The four were among a group of paparazzi seen
driving at high speed in the Mission Hills area of
the city around 11:30 p.m. on Wednesday on the
trail of the troubled singer.
Four men were booked for reckless driving and
each ordered to put up $5,000 bail.
Another photographer arrested:
Lohan’s case in 2005
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In 2005, Galo Cesar Ramirez, the celebrity photographer,
was charged with false imprisonment and assault with a
deadly weapon after ramming a car driven by Lindsay
Lohan.
The Los Angeles D.A. concluded that there was no
evidence that he deliberately crashed his minivan into the
actress' Mercedes-Benz: "Based upon the damage
sustained to both the victim's and the suspect's cars, it
appears that although the suspect was most likely driving
carelessly when he collided with the victim's car, it was not
an intentional assault,”
Civil v. Criminal lawsuits
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Civil lawsuits and legislative curbs on photojournalists
face very strict standards
However, criminal acts by journalists are not protected
While many of the crimes committed by photographers
may by only misdemeanors, the prosecutors are studying
whether the teams of paparazzi could be prosecuted on
felony conspiracy charges.
Conspiracy in criminal law
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A conspiracy is an agreement of two or more
people to commit a crime, or to accomplish a
legal end through illegal actions
Conspiracy law usually does not require proof of
the specific intent by the defendants to injure any
specific person in order to establish an illegal
agreement. Instead, usually the law only requires
the conspirators have agreed to engage in a certain
illegal act.
California Anti-Paparazzi Law
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Any invasion of privacy with the intent to
capture any type of visual image etc. of the
plaintiff is liable
for up to 3 times the amount of damages and
for punitive damages and,
if proven to be committed for a commercial
purpose, subject to surrender to the plaintiff
of any proceeds obtained as a result of that
violation.
Liability for Newsgathering Methods
Journalists may be subject to criminal liability
for their newsgathering techniques.
Some common legal areas (in addition to the
invasion of privacy) include:
Trespass
Fraud / Misrepresentation
Trespass
An intentional, unauthorized entry onto land
that is occupied or possessed by another.
“There is no journalists’ privilege to trespass.”
Applies to private and government-owned property
Also: criminal trespass
Trespass Possible Defenses
Express Consent (specific authorization)
But beware of exceeding scope of consent or
obtaining consent from someone who does not
have the power to consent
Implied Consent (doctrine of custom and usage:
The property, although privately owned, is
generally open to the public and journalists do
not otherwise interfere with the business use).
But never rely entirely on the notion of “implied
consent”
Examples of trespass rulings
Government-owned property:
The Camp Garcia Naval Installation at Vieques,
Puerto Rico (2000).
Private:
Reporter Bryon Wells’ case (2004)
Desnick v. ABC (1995)
Desnick v. ABC (1995)
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Two ABC employees posed as patients and requested eye
examinations at Desnick's eye clinics. They used hidden
cameras and recorded the eye examinations which were
subsequently used for a news story about Desnick's eye
clinics.
Despite the ABC employees' misrepresentation of
themselves as patients, the court declined to hold ABC
liable for trespass because the eye clinics were open to the
public, and the ABC employees did not interfere with
Desnick's ownership or possession of his property.
Fraud
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FRAUD: A knowingly false statement that is
communicated with the intent to induce the
plaintiff to rely on that statement and that does, in
fact, induce the plaintiff to reasonably rely upon it
to the plaintiff’s harm or injury.
Danger: Be aware, from a criminal perspective,
of fraud in the form of impersonating a
government official
Food Lion Inc v. Capital Cities/ABC
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ABC employees trespassed at Food Lion stores to
obtain hidden-camera footage aired later on
“Primetime Live” alleging food mishandling
The business was hurt by the report
Sued ABC for trespass and fraud
Awarded only a nominal damage $1 for trespass
Misrepresentation
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Veilleux v. NBC
Failure to Obey Lawful Orders
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Police and fire officials have the right to restrict
media access to the scene of disasters, accidents,
and fires
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Reporters who do not obey these rules face
charges of disorderly conduct, criminal
trespassing, delaying and obstructing an officer
A STANDING PRESS PASS
Some jurisdictions issue standing press passes
permitting access to a scene of disaster, crime, etc.
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1. Technically the pass is not necessary
2. Even with the pass the media might be held
behind the lines
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An example: L.A. Sheriff’s: Media
Access at an Incident/Crime Scene
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Incident/Crime Scene and Command Post Areas
may be closed to the media.
Under most circumstances, the areas will initially
be closed to the media.
Constraints to media access are subject to review
by incident commanders and Department
executives. They should be lifted whenever the
situation warrants.
Whenever the media is denied access to
an incident/crime scene LASD shall
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Provide a "Media Area" with maximum access
possible under the circumstances
Provide timely / updated information to the media
Consider "Pool" access, (1 TV camera, 1 TV
reporter, 1 print, 1 photographer, 1 radio reporter)
into the scene, who will share the information with
their counterparts outside the scene
NOTE: All information to be released at the
scene must be cleared by the incident commander,
in cooperation with investigators
Tagging Along with Police
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There is no special exception for trespass when
accompanying emergency services (police, fire).
Miller v NBC 1986 (the same case covered in privacy chapter).
Camera crew followed all the way to the bedroom filming the
resuscitation without obtaining consent from Miller’s family
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Allowed if the police can claim temporary
custody of a property. Florida Publishing Co. v. Fletcher
1976. A photographer who accompanied a fire marshal into a home
destroyed by fire did not intrude because consent to enter was implied
based upon common custom and practice for the news media.
Special problems / situations
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Contractual Limitations
Confiscation
Polling places
Jails / prisons
Government Proceedings
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State open meetings laws: require that
government deliberations to be open to the
public. The law authorizes closed sessions
(executive sessions) but only in special
circumstances
Federal Gov: The Sunshine Act of 1976
The Freedom of Information Act
Provides a statutory right of access to records
possessed by federal government agencies.
This right of access, however, is qualified by nine
specific statutory exemptions and by recent laws,
such as the Homeland Security of Act of 2002, that
create specific exceptions from FOIA requirements.
FOIA Exemptions
1. National security matters
2. Housekeeping materials (personnel practices)
3. Material exempted by statute
4. Trade secrets of private business
5. Internal memos, working papers & Lawyer-Client
privileged documents
6. Personal privacy files (e.g., medical records)
7. Law enforcement records (investigations)
8. Financial institution materials
9. Geological data (oil and gas)
Homeland Security Act of 2002
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Creates a massive exception from federal
FOIA laws for so-called “critical
infrastructure information” that is
voluntarily submitted to the Homeland
Security Department by private persons and
business entities.