Journalists and Trespass

Note: The word journalist applies to photographers and reporters alike in this section.

The rights of free speech and protection from unreasonable searches and seizures have traditionally enjoyed great protection in the United States. Both of these freedoms are included in the Bill of Rights and have been defined in countless court decisions. Although these fundamental freedoms protect citizens against state action, they can implicate the actions of journalists when journalists enter private property to report on a story. This is because entering upon the land of another without their consent is trespass, and the First Amendment does not give journalists the right to trespass. Courts have traditionally upheld a person's right to protection from unreasonable searches and seizures (and their right to privacy), as guaranteed by the Fourth Amendment, to outweigh a journalists interest in acquiring news.

This general concept has been upheld by the United States Supreme Court, which held in the case of Branzburg v. Hayes, 408 U.S. 665, 1 Media L. Rep. 2617 (1972), that newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded. Numerous other court decisions have expanded upon this general rule. Most notably is Wilson v. Layne, 526 U.S. 603 (1999), which deals with media "ride-alongs" (where members of the media accompany law enforcement officials performing their duties). In Wilson, the Supreme Court held that an individual's Fourth Amendment rights were violated when members of the media accompanied law enforcement officials who executed a search warrant on their private residence. The reasoning behind this decision is that police actions must be related to the objectives of the authorized intrusion (as spelled out in the search warrant) and the accompanying members of the media did not aid in the execution of the search warrant. Therefore, the law enforcement officials were not permitted to invite non-essential personnel, including journalists, with them in executing a search warrant. This principal applies no matter what the public interest is in the events taking place.

As with any legal policy, there are exceptions to the general rule. First, journalists are free to observe and record events that take place in public. If a suspect bursts out of the house and is chased down the street, such action is not protected by the Fourth Amendment and may be recorded by journalists. Second, trespass does not occur when the journalist is invited onto the property by the possessor or owner of the property. For example, if a tenant of an apartment complex invites a journalist into the apartment, the journalist is not trespassing, even if the owner of the apartment complex objects to his or her presence. Third, trespass does not occur if the journalist is invited onto private property by firefighters or police officers in a situation where a search warrant is not being served (such as during an arson investigation) and the owner or occupant does not object to the presence of the journalist.

Other situations are likely to be considered trespass by the courts. If the journalist is not invited onto the property, but instead uses force to enter the property, the journalist will be committing a trespass. A trespass will occur once the occupant of the property objects to the journalist's presence and the journalist refuses to leave. However, if the occupant permits the journalist on the scene, the journalist may remain there even if the police object to his or her presence. The Fourth Amendment protects the citizen, not the police officials.

Courts have even held that the government can prevent journalists from entering a public area under certain conditions. For example, courts have held that the military could prevent journalists from attending funeral ceremonies for soldiers (where the journalists were refused permission to attend by the deceased soldiers' families) because it did not impede the journalists from acquiring the basic facts.

Finally, journalists may be committing trespass if the use misrepresentation or fraud to violate someone's private space or gains intimate details of one's life. This concept applies to individuals and businesses alike. An example of this concept is Food Lion v. Capital Cities/A.B.C., 194 F.3d 505, (4th Cir.(N.C.) 1999), where two journalists posed as employees for Food Lion grocery stores and gained access to areas of the store that were off limits to the general public. The court found that there was trespass in this case because the journalists violated a duty of loyalty towards Food Lion because they were hired as employees. However, this does not mean that every journalist investigating a business will be guilty of trespass. The court in the Food Lion case indicated that if a journalist used misrepresentation (such as posing as a phony customer) to gain access to a business, such action will not constitute a trespass if it occurs in a public area (such as a doctor's office or a showroom floor) and does not invade the intimate details of anybody's life. Therefore, journalists acting as false customers or testers are not guilty of trespass if they acquire information in areas that are open to the public.

Note: While the several of the above situations have not been litigated in Pennsylvania, it is likely that Pennsylvania courts will uphold the same or similar concepts.

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