Legal Hotline: Press Rights on Public Property
Legal Hotline: Press Rights on Public Property
Q: What rights do journalists have to gather news and report on newsworthy events occurring on public property?
A: The press enjoys significant First Amendment rights to gather news and report from public property. Those rights can be limited by government officials in certain, limited circumstances, but any limits on constitutional rights can only be applied in a strict constitutional framework, and any limits are subject to challenge. We explore a few commonly asked questions about covering protests on public property below, and these general rules apply to any newsworthy event occurring on public property.
DO I HAVE A FIRST AMENDMENT RIGHT TO COVER A PROTEST?
Yes, with limitations. If a newsworthy event takes place on public property, the press has a constitutional right to reasonably gather and disseminate news from that location. The government can place reasonable time, place and manner restrictions on First Amendment activity, but those restrictions must meet a rigorous three-part test: the restrictions must be content-neutral, narrowly tailored to serve a significant government interest, and must leave open alternative channels of communication. Law enforcement can limit access to public property within the framework of the First Amendment, but any limit must be applied to all members of the public; the press cannot be singled out for negative treatment. Law enforcement may not arrest a reporter or prohibit First Amendment rights to retaliate for the content of news coverage or to prevent reporting on a public demonstration.
DO I HAVE A FIRST AMENDMENT RIGHT TO RECORD LAW ENFORCEMENT OFFICERS IN PUBLIC?
The Third Circuit Court of Appeals unanimously affirmed the First Amendment right to record the activities of law enforcement officers in public. See Fields v. City of Phila., 862 F.3d 353 (3d Cir. 2017). It is also important to note that Pennsylvania’s Wiretap Act prohibits recording a conversation without permission of all the parties, but this prohibition only applies where there is a reasonable expectation that the conversation will not be recorded, i.e. where there is a reasonable expectation of privacy. There is no expectation of privacy in public settings, and the First Amendment makes clear that members of the public and press have a right to record law enforcement officers performing their duties in a public setting. It is a best practice for journalists to clearly identify themselves as members of the press, record from safe distances, and to be transparent when recording.
CAN LAW ENFORCEMENT SEARCH AND SEIZE ME AND MY EQUIPMENT?
Generally, law enforcement can briefly detain you if they have reasonable suspicion to believe you are engaged in criminal activity. Law enforcement can pat you down if they have an objective, reasonable belief that you are armed and dangerous. Law enforcement can arrest if they have probable cause to believe a crime is being committed. A search of personal property generally requires a warrant issued by a court; however, law enforcement can search and seize personal property from an individual and in their immediate vicinity during an arrest. Police cannot search the contents of a cellphone without a warrant, but they can seize it during an arrest, examine it for physical threats, and secure it while seeking a warrant. Law enforcement will often ask for consent to search personal electronic devices, but journalists should respectfully decline. Journalists should clearly identify themselves as members of the press to put law enforcement on notice that rights under the Pennsylvania Shield Law, Privacy Protection Act of 1980 and/or Qualified First Amendment Reporters Privilege are at issue.
The Pennsylvania Shield Law, Privacy Protection Act of 1980 and the Qualified First Amendment Reporters Privilege act to shield journalists’ sources and materials from compelled disclosure. The Pennsylvania Shield Law prohibits compelled disclosure of information that would reveal the identity of a confidential source. The Pennsylvania Shield Law is absolute when properly asserted by journalists. The Privacy Protection Act of 1980 restricts law enforcement from searching for and seizing a journalist’s work product and documentary materials. Further, the Qualified First Amendment Reporters Privilege prevents the disclosure of a reporter’s confidential sources and other unpublished materials in their possession relating to the newsgathering acts.
HOW CAN I AVOID ARREST DURING A PROTEST?
The most important step is to identify yourself as a member of the press and adhere to orders from law enforcement officers, although nothing will provide absolute protection. If a law enforcement order seemingly violates First Amendment rights, journalists can seek out law enforcement to discuss the issue. Approaching law enforcement in advance of protests to identify yourself, alert them to your presence and First Amendment rights can be helpful. Journalists should clearly identify themselves as a member of the press, ideally with photo identification like a PNA Press Pass and/or a photo identification issued by a news organization. High visibility vests emblazoned with “PRESS” can also be helpful in alerting law enforcement to the presence of journalists engaged in First Amendment activity. The Reporters Committee for Freedom of the Press has also offered advice for journalists gathering news during protests including working in pairs, carrying government-issued photo identification, and carrying cash for bail as well as a supervisor’s and/or attorney’s contact information in case you are arrested. See the RCFP’s tip sheet for additional advice.
PNA asks that all members report any issues with law enforcement, government officials or protest participants so that we can track these incidents and follow up with the appropriate authorities.
The PNA Legal Hotline is available to answer member questions and to provide advice. You can reach PNA Hotline Attorney Melissa Bevan Melewsky at (717) 703-3080 or firstname.lastname@example.org. As always, this is not intended to be, nor should be construed as, legal advice.