News Gathering & the Law
There are three primary sources of law to which journalists might look for a legal right to access
information:
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○ Common Law
○ Discovering law and looking to past
○ Not best bet
○ Constitutional Law
■ The first amendment to the US Constitution
○ Better chance of getting stuff you want to know
○ Statutory Law
■ Best way to get what you want to see
■ Both state and federal statutes
■ Can be very specific
News Gathering & the Law
Common Law
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○ Only provides bare access to government documents and meetings of
public agencies
News Gathering & the Law
Constitutional law
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○ Historically, the First Amendment was seen as a means by which the
public could confront its government, not necessarily report on its activities
News Gathering & the Law
Constitutional Law
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○ The Supreme Court has found no unrestrained right of journalists to
gather information beyond that of the average citizen
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○ In three cases involving prisons, the Supreme Court found the First
Amendment does not guarantee a journalist the unobstructed right to gather
news in that setting
News Gathering & the Law
Constitutional Law
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○ The Court has ruled that there is a First Amendment right for all citizens
to attend a criminal trial
News Gathering & the Law
Constitutional Law
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○ Access to Government Officials
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■ Members of the press have no special right of access to
government officials to conduct one–on-one private interviews
The First Amendment Protection of News Gathering
Journalists today increasingly are being sued for how they gather news:
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○ Trespass
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○ Harassment
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○ Fraud
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○ Misrepresentation
The First Amendment Protection of News Gathering
Trespass
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○ An intentional, unauthorized entry onto land that is occupied or
possessed by another
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○ Reporters may face civil liability and criminal prosecution when they
trespass
The First Amendment Protection of News Gathering
Trespass
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○ Defenses:
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■ Consent – when journalists are invited or allowed onto private
property
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■ When property is generally open to the public (businesses), and
journalists do not otherwise interfere with the business use
The First Amendment Protection of News Gathering
Trespass
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○ Ride Alongs
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■ Government agents (police, firefighters) cannot give permission to
reporters or photographers to enter private property
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■ They, and the journalists can be held accountable for trespass or
violations of the Fourth Amendment – illegal search and seizure
The First Amendment Protection of News Gathering
Harassment
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○ Journalists who hound, stalk or undertake other unreasonable
surveillance methods may be charged with harassment
The First Amendment Protection of News Gathering
Fraud
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○ A knowingly false statement of a material or significant fact 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
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○ Journalists cannot lie to gain access to otherwise private property or
information
The First Amendment Protection of News Gathering
Misrepresentation
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○ Journalists must uphold promises they make to subjects of or participants
in stories regarding material they have agreed to include or exclude
The First Amendment Protection of News Gathering
Failure to Obey Lawful Orders
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○ Reporters must respect orders from police and fire officials at the scene
of disasters, accidents and fires or face disorderly conduct or other criminal
charges
The Freedom of Information Act
The Freedom of Information Act (FOIA) provides a statutory right of access to records
possessed by federal government agencies
The Freedom of Information Act
Applying the Law
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○ The federal government has often been hostile to FOIA requests made by
reporters
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○ The Bush Administration, especially following 9-11, has been highly
restrictive in its release of information to the public via FOIA requests
The Freedom of Information Act
Agency Records
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○ What is an agency?
■ •
■ Any executive department, military department, government
corporation, government-controlled corporation or other establishment in
the executive branch of government, or any independent regulatory
agency
The Freedom of Information Act
Agency Records
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○ What is a record?
■ Paper documents
■ E-mail
■ Computer-generated materials
■ Films
■ Tapes
■ Three-dimensional objects, such as evidence
The Freedom of Information Act
Agency Records
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○ What is an agency record?
1. If the agency has created the document and is in possession of
that document, it is very likely an agency record
2. If the agency has created the document but does not possess or
control it, it is not an agency record
3. If the agency merely possess the document, but has not created
it, it might or might not be an agency record
The Freedom of Information Act
FOIA Exemptions
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○ The FOIA has nine specific statutory exemptions and is limited by recent
