Right To Free Press Doesn't Mean The Press Gets Unfettered Access

from the free-press-means-something-different dept

Mon, Jun 8th 2009 12:58pm — Mike Masnick

Late last year, we found it silly that three journalists were suing the NY Police Department, claiming their First Amendment rights were violated because the police refused to give them press passes. As we noted, freedom of the press doesn't mean that anyone has to give those journalists access. If I remember correctly, that case was eventually settled with the journalists being given press passes again, but a similar case in California has gone all the way to a ruling, with the court finding that the First Amendment does not automatically grant journalists access (via Romenesko). In this case, a photojournalist was trying to photograph a car accident scene, and police barred him from the scene and eventually handcuffed him. The judge found that while the press should be allowed to have the same access as the public had, the public isn't granted access to crime scenes, so it's entirely reasonable for the police to order the press away from a crime scene. Of course, there are separate issues here which weren't addressed, including that the police didn't just ask him to leave, but at one point said "You don't need to take these kind of photos." One could make an argument that statements like that could go over the line.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: access, free press

45 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 8 Jun 2009 @ 1:32pm

Now Mike, just imagine this same scene with no actual reporters, but hundreds or thousands of bloggers claiming to be press all trying to jump police lines to get the most gruesome splatter pic they can manage to try to get 2 or 3 more hits to their blogs.

The courts got it right.
[ link to this | view in thread ]
Matt Bennett, 8 Jun 2009 @ 1:44pm

"You don't need to take these kind of photos."

Now, I've heard all sorts of questionable things from police, both personally and secondhand. Once, a police offer threatened to arrest me merely for requesting his badge number (he had been swearing at me for no particular reason, after a different incident, long story, but yes, that was the sole reason he was threatening to arrest me). Police officers are unfortunately often really deputized bullies. But this statement doesn't actually seem in any way controversial..........?
[ link to this | view in thread ]
Dark Helmet (profile), 8 Jun 2009 @ 1:53pm

Haha
""You don't need to take these kind of photos.""

These aren't the stories you're searching for....
[ link to this | view in thread ]
Tor (profile), 8 Jun 2009 @ 1:55pm

We saw the same thing in the Pirate Bay case where the TPB guys gave a press conference where one of the larger TV channels were not welcome since they had earlier presented untrue things about the Pirate Bay (even though TPB had supplied them with background material). Many described this as hypocracy - that they advocated free speech but didn't live up to it themselves by not granting TV4 access. (I think TV4 bought coverage from those who were there though)

(TPB was clear about that critical media was also welcome, but they didn't want to spend their free time helping those who spread outright lies)
[ link to this | view in thread ]
The Cenobyte, 8 Jun 2009 @ 1:55pm

We don't have access to public roads now?
He was barred from a public road and threatened with arrest? That didn't both the judge at all? Did this guy cross the police line? I could give two craps about the freedom of the press issue. As far as I can concerned freedom of the press is just freedom of speach and nothing extra but barring someone from taking pictures in public and threatening them with arrest if they don't leave a public place is a little over the top.
[ link to this | view in thread ]
Mike Masnick (profile), 8 Jun 2009 @ 1:59pm

Re:
The courts got it right.

Yes. I agreed with you. Not sure why you're implying otherwise?
[ link to this | view in thread ]
Matt Bennett, 8 Jun 2009 @ 2:06pm

I think it's good to be worried about the police mistreating people (obviously I've had an issue or two myself), but in general I'm alright with police strictly controlling access (including merely visual access) to a crime scene. That's important for both tracking down perpetrators and for the court cases that follow.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 2:22pm

Re: Re:
Not implying otherwise at all - just pointing out the alternative (unfettered access to journalists) could have some serious repercussions in the "new media" world.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 2:24pm

Re:
Much of what TPB guys are very, umm, liberal with the truth, they seem to get very upset when anyone uses anything that isn't their view of the universe.

They are pro free speech for themselves, not for everyone.
[ link to this | view in thread ]
CommonSense (profile), 8 Jun 2009 @ 2:34pm

Re:
Not that you're wrong, as I agree with you and Mike; I think the courts got it right as well, but even with no actual reporters, I don't see why there'd be hundreds or thousands of bloggers in there... Isn't the beauty of working on the internet the fact that ONE single person could be in there taking pictures, and then the blogs just LINK to them when they're available?? I think you're trying to make a problem where there isn't one, and I think you're reaching a little bit too far...
[ link to this | view in thread ]
minijedimaster (profile), 8 Jun 2009 @ 2:36pm

Re: We don't have access to public roads now?
There is a difference of taking a picture in a public place and taking a picture of a crime scene. The argument was that the general public isn't granted access to a crime scene, so why should a reporter be. Doesn't matter if the crime scene is in the middle of a public road, once the crime/accident happens, no public access until they police have finished gathering whatever evidence was there. Good job figuring that out on your own...
[ link to this | view in thread ]
Ian, 8 Jun 2009 @ 2:50pm

Re: Re: We don't have access to public roads now?
It wasn't a crime scene it was a wreck on a high way.
[ link to this | view in thread ]
Grimace, 8 Jun 2009 @ 2:55pm

Totally different issues at play between the NY press pass case and the CA case. The issue in NY was that the NYPD decided to give press passes to journalists, and those with press passes were given access. They created the press pass system to allow access, and, having done so, could not arbitrarily grant or deny passes. The CA case was one in which the police decided NOBODY got access to a certain scene. There was no different treatment of journalists based on some arbitrary standard.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 2:55pm

The judge found that while the press should be allowed to have the same access as the public had, the public isn't granted access to crime scenes, so it's entirely reasonable for the police to order the press away from a crime scene.

The reasoning here bothers me as it seems to constitute chipping away at the first amendment. If the press has no more rights than the general public, then what's the point of including "the press" in the first amendment at all? Doesn't that interpretation pretty well gut the first amendment as far as the press is concerned? The equal protection clause would mean that they still got the same treatment as the general public, so what's the point?
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 3:03pm

Re:
We saw the same thing in the Pirate Bay case where the TPB guys gave a press conference where one of the larger TV channels were not welcome...

What? The same thing? Then you must mean that the TPB is the government there. Wow, I didn't know that. You're so smart, Tor.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 3:05pm

Re:
Reverse the argument - what specifically in the first amendment would you say grants the media MORE freedom than individuals? Would that not be unfair in and of itself?
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 3:24pm

The real issue is why police can bar citizens from public property.
[ link to this | view in thread ]
James (profile), 8 Jun 2009 @ 3:27pm

Re: We don't have access to public roads now?
It is not a public road when it becomes a crime scene. Police Line - Do not cross.
[ link to this | view in thread ]
James (profile), 8 Jun 2009 @ 3:28pm

Re: Re: Re: We don't have access to public roads now?
crime scene, investigation scene. It is the same thing for this instance.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 3:29pm

EVER
The police officer is reported to have said "Don't ever come here again to take these kinds of photos." Note that he said "here", not "to crime scenes". So that his earlier claim of it being a "crime scene" was irrelevant in his threat and he was actually attempting to permanently ban the reporter from the area. That sounds more like a police officer with a dislike for reporters (or maybe even Hispanic reporters in particular) to me.

And the pictures? They were of an arriving ambulance and police car. Not the kind of thing that would invade anyone's privacy.

Finally, the accident was also visible to the general public driving by who could also take pictures, but the officer seems to have taken exception to a reporter doing so.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 3:31pm

Re: Re:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
[ link to this | view in thread ]
DJ, 8 Jun 2009 @ 3:35pm

An interesting Juxtaposition
The biggest problem with almost every media agency (though not all) in the country is that, whether intentionally or not, they operate under the pretense that they are untouchable due to 1st Ammendment rights.

However, as Mike points out, while the Constitution gives US CITIZENS (only) the right to say and/or print whatever we want (slander and libel notwithstanding), it DOES NOT mean that they have to be ALLOWED to print EVERYTHING.

So why is this a juxtaposition? Because freedom of speech also means freedom to NOT SPEAK; which is different from the 5th Ammendment in subtle, yet specific ways.

In other words, just because you have the right to publish a photo of me, doesn't mean that I have to LET you take that photo.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:06pm

Re:
The real issue is why police can bar citizens from public property.

And why they are allowed to met out "street justice"? The officer in this case handcuffed the reporter and positioned him out in the sun by the side of the road by passing traffic for at least half an hour before finally releasing him. Shouldn't handcuffing be reserved to situations where the individual is going to be incarcerated? This sounds like a modern day version of "the stocks of public pillory" used for public humiliation. Maybe the cops could start doing this for other minor offenses, like jay walking, too. Just cuff them up to a light pole in public for a while before finally writing them a ticket and cutting them loose. Let people verbally abuse them for a while to teach them a lesson (that's what happened to the reporter). How would you like to maybe see something like that done to your mom? People could walk by and call her all kinds of names (and maybe even assume she'd been busted for prostitution or something). Fun, eh?
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:11pm

Re: Re: Re:
That says "Congress shall make no law", it doesn't say cops can't do it on their own.
[ link to this | view in thread ]
DJ, 8 Jun 2009 @ 4:20pm

Re:
The cops CANNOT bar citizens from public property; at least not in general.

However, what apparently every person on this site is failing to realize is that IT WAS A CRIME SCENE!!!!!!!!!

Joe Schmoe with a camera can't just waltz into a crime scene and start snapping photos. Even if Joe is an accredited journalist!
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:27pm

Re: Re: Re:
Sorry, but I don't see where that gives media MORE rights than the general public.

The police create exclusion zones around crime (and accident) scenes to permit them to properly do their jobs. Exactly how does that violate the constitution? After all, if everyone trampled around every crime site, would it not hurt other's rights to a fair trial?
[ link to this | view in thread ]
DJ, 8 Jun 2009 @ 4:42pm

Re: EVER
So, did the officer say
"Don't ever come here again to take these kinds of photos."

Or

"You don't need to take these kind of photos."

Those are two very different statements. Another possiblity, and in my mind is more plausible, is that what he said was "Don't come here again to take these kinds of photos," and someone took "journalistic license" to add the word "ever" to the officer's statement. Thereby making the officer out to be the villain.

Is there corruption in police departments around the country? Of course there is, but that doesn't mean that ALL COPS are corrupt. Which of course ties a parallel to the original argument of whether journalists should have access to ALL public information.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:45pm

Re: Re:
IT WAS A CRIME SCENE!!!!!!!!!

Really? How's that?
[ link to this | view in thread ]
Pjerky (profile), 8 Jun 2009 @ 4:53pm

Re: We don't have access to public roads now?
I think this can be filed in the "bending the law for the sake of decency" folder. As much as I like to protect our freedoms I also understand that following the law to the letter can be just as dangerous as ignoring laws altogether. Obviously this brings up questions as to who gets to decide what is decent. I really don't want to start that argument here.

Suffice to say taking gruesome photos of someone else's misery and suffering for personal financial gain is a disgusting abuse of "freedoms". I doubt the intentions of the law were to cover this kind of use and thus I think that potentially bending the law to prevent this abuse was a good thing. Notice I say potentially because it is questionable that law was bent or broken to prevent this action, primarily because we are talking about the freedom of speech, not the freedom to nose into others personal business.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:53pm

Re: Re: EVER
So, did the officer say
"Don't ever come here again to take these kinds of photos."
Or
"You don't need to take these kind of photos."

It has to be one or the other? The officer could have made only one statement? You need to explain that logic.

...what he said was "Don't come here again to take these kinds of photos," and someone took "journalistic license" to add the word "ever" to the officer's statement.

If you're going to essentially accuse Henry K. Lee (the Chronicle staff writer) of lying, then I think you should provide some evidence to back it up. Otherwise it appears that you may be the one lying.
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 4:55pm

Re: Re: EVER
"...that doesn't mean that ALL COPS are corrupt."

And nobody here was saying so, either. So why are trying to imply that they were?
[ link to this | view in thread ]
Anonymous Coward, 8 Jun 2009 @ 5:04pm

Re: Re:
So, you are saying that it's not all right to block out the people who say they are the news media, yet then go spreading unverifiable lies (not news media)? I think they're just expressing their rights.

See, you're a liar, yourself. Free speech just means you can say what you want (provided it isn't an untruth that cause harm to another in any way, shape or form), not that you get to listen to someone else's free speech.
[ link to this | view in thread ]
Luci, 8 Jun 2009 @ 5:07pm

Re: Re: Re: We don't have access to public roads now?
Which is a crime scene. Thank you, move along, nothing to see here.
[ link to this | view in thread ]
Sam (profile), 8 Jun 2009 @ 5:34pm

Police and news photographers
News reporters and photographers are acting as representatives of the general public and should be given greater latitude that would be given to every gawker that might happen along. That having being said it needs to be pointed out that Police Officers have a tendency to abuse their authority, and courts should keep that in mind when returning these decisions.
[ link to this | view in thread ]
bioselement (profile), 8 Jun 2009 @ 5:46pm

Wow
No really, I love all the idiots commenting. Police Line = Do not cross. No Press, No Citizens. Simple as that. Freedom of the press does NOT mean you can walk into the CIA's office and read through their papers.

Cuffing the moron who's wasting time when they've got an accident to clear up is perfectly acceptable. In the sun? Are you kidding me? It's a HIGHWAY. Since when is there shade? Exactly.
[ link to this | view in thread ]
mischab1, 8 Jun 2009 @ 9:04pm

Re: Wow
"It's a HIGHWAY. Since when is there shade?"

In Oregon? All the time. :P

Ok, ok, I know this didn't happen in Oregon, I just couldn't help myself.
[ link to this | view in thread ]
Anonymous Coward, 9 Jun 2009 @ 1:14am

Re: Wow
Cuffing the moron who's wasting time when they've got an accident to clear up is perfectly acceptable. In the sun? Are you kidding me? It's a HIGHWAY. Since when is there shade?

Where is there shade? In the back of one of the patrol cars. Of course, that wouldn't serve the pillory purpose, would it?

Exactly.

Indeed.
[ link to this | view in thread ]
Anonymous Coward, 9 Jun 2009 @ 1:27am

Re: Wow
"No really, I love all the idiots commenting."

Just like you, eh?

"Police Line = Do not cross. No Press, No Citizens."

There was no line. Why are you trying to say there was?

"Freedom of the press does NOT mean you can walk into the CIA's office and read through their papers."

And no one here has said so, either. So all you can do is trot out straw men and call people names?
[ link to this | view in thread ]
Anonymous Coward, 9 Jun 2009 @ 7:43am

So the photog was handcuffed and detained until they got the body into a body bag. There, happy?
[ link to this | view in thread ]
The Cenobyte, 9 Jun 2009 @ 10:26am

People should have access to see anythign in a public place
I don't care if it's a crime scene or not. If they are in a public space and not disrupting to crime scene there is no reason at all they should be asked to leave. As I understand it there was not police tape up, and it was in plane view on a public highway. Giving the officers the right to prevent someone from taking pictures at a crime scene opens us up to the police saying you can't take pictures of them in the line of duty if they are in the process of dealing with any kind of crime.

So for example while the police beat some guy on the road, you are not allowed to take pictures and they have the right to detain you because it's an active crime scene.

Police should never be able to run someone off off public property unless they are comitting a crime. Handcuffs used on anyone by the police that is then not charged should be considered a crime. Police should be held to a higher standard than the average citizen, and it's just a shame that they seem to always get away with anything they want.
[ link to this | view in thread ]
nasch (profile), 9 Jun 2009 @ 1:18pm

Re:
The police telling someone what photos they can and cannot take? Sounds controversial to me. They should have made it clear where he was allowed to be and where not. Anywhere he is allowed to be, he should be able to take photos of anything he wants, and do whatever he wants with them.
[ link to this | view in thread ]
nasch (profile), 9 Jun 2009 @ 1:31pm

Re: An interesting Juxtaposition
But the only way you can prevent me taking the photo is to stay in private. If you go out in public, you have no right to prevent me from taking a picture of you.
[ link to this | view in thread ]
Anonymous Coward, 9 Jun 2009 @ 1:40pm

Re:
So the photog was handcuffed and detained until they got the body into a body bag.

What body? You seem to be making stuff up.

There, happy?

That you're making stuff up?
[ link to this | view in thread ]
Anonymous Coward, 9 Jun 2009 @ 1:47pm

Re: Re: Re: Re: We don't have access to public roads now?
Which is a crime scene.

How's that? Oh, I see. People break traffic laws on public streets so all public streets are now "crime scenes" and nothing that a cop does on one can be recorded. Somebody should have told that to the person who recorded the cops beating Rodney King. I bet you'd love to get your hands on that person, wouldn't you?

Thank you, move along, nothing to see here.

You wish.
[ link to this | view in thread ]
btr1701 (profile), 9 Jun 2009 @ 3:43pm

Re: Public Property
> The real issue is why police can bar citizens from public property.

Just because the property is public doesn't mean the public has access to it. The White House is public property. As is the Pentagon and CIA Headquarters. Good luck making the argument that law enforcement can't restrict access to those facilities.
[ link to this | view in thread ]