Updated: Dec 21 2014
“Getting the story” or “getting the shot” first requires getting into the places where news happens. But sometimes the information you need is behind a barricade — a physical one, or a legal one.
Knowing the law can open many locked doors. And it can also help you minimize the risk of a nasty confrontation with the authorities. This Guide provides some tips on using the law to gain access — safely — to the people, places and documents you need. We hope that this Guide will prepare you for some of the obstacles you might confront while out in the field and help you avoid common "traps" that can befall even seasoned reporters.
Sitting by the emergency communications scanner in your newsroom or listening to one of your other news sources has finally paid off, and you are off to the scene of an unfolding incident. But what happens once you arrive? Almost anything — and you need to be ready for it.
Be courteous and respectful of emergency personnel at news scenes; lives and safety can be at stake. Although emergency personnel generally understand the media's need to gather and report news, burning buildings and accident victims are their first priority.
Also keep in mind that emergency personnel might have legitimate reasons for keeping you from places that are not readily apparent when you first arrive at a scene.
For example, in August 1997, a New Hampshire man named Carl Drega shot and killed two state troopers, a part-time judge and a newspaper editor (who died trying to save the judge's life) during a shooting spree.
Reporters who went to Drega's property were told to stay clear: The house and barn were booby-trapped and rigged to kill anyone who entered; the rest of the property had yet to be thoroughly searched. In fact, the property turned out to be so laden with bombs, tunnels and other traps that authorities eventually decided to burn it down rather than risk lives to search it more thoroughly. 1
That is not to say, however, that the police will always have good reason to keep you from a scene, and you should not hesitate to question them about their decision.
Just ask Chris Hahn, a student journalist at Ball State University in 1998. He was arrested for videotaping a car accident scene because the arresting officer erroneously thought he had no right to be there. 2
"I kept telling the officer as he was handcuffing me, 'I have a right to be here,'" Hahn said. "I told him repeatedly that it was wrong to arrest me."
In a later statement, Ball State Chief of Police Joseph Wehner said Hahn should not have been arrested and that he did have a right to videotape the scene.
Yet, harsh penalties could befall journalists who ignore, disregard, or are not attentive to police instruction, regardless of whether a reporter believes that the police are in the wrong.
In 2009 Diane Bukowski, a reporter for The Michigan Citizen, was found guilty of two felony charges for resisting and obstructing police. The reporter allegedly crossed a yellow police tape and began photographing the wreckage of a motorcycle crash.
The reporter was fined $4,000 and sentenced to one year of probation. Bukowski filed an unsuccessful appeal. 3
In order to avoid arrest, you and your newsroom should always have a plan ready for when you are denied access to a news scene.
Have the names and telephone numbers of legal advisers and police officials on hand. Find out ahead of time if the police have press guidelines and what they say. Get a press pass if police require them. If they do not, talk with local law enforcement agencies about how your reporters can ensure they will be allowed to cover news scenes effectively.
Your plan should help you gauge whether you should stay at a scene after you have been told to leave (and risk arrest for trespass) or leave knowing you did the best you could.
Public property v. private property
When headed to a scene, you want to find out if the news event is taking place on public-forum public property, on non-public-forum public property or on private property.
Public forum property, generally, is government property where public access rarely can be denied.
Streets, parks and sidewalks are examples of public property that fall into the public forum category. Unless emergency personnel have an extremely good reason for keeping you off or away from the property — such as a threat to public safety — you have a right to be there, ask questions and take pictures in an unobtrusive manner. 4
Non-public-forum property includes government property that has not traditionally been wide open to the public, including government buildings and facilities, schools, airports, prisons, jails, military facilities and state legislatures. These types of property often have specific guidelines for how media coverage can be conducted on the property. 5
Once again, your best plan is to call ahead and have an updated list of the various media access policies of local non-public-forum properties in your area.
Private property is property owned by an individual or business, and unless you have the permission of the owner (or, in some cases, the police) to enter onto the property, you generally cannot do so. 6
Where a media access policy doesn’t exist, your newsgathering strategy will need to be more fluent, dictated largely by the event itself.
While the determination of whether the property is public, non-public-forum property or private property is the first and probably most important step in determining whether you should stay or go; however, do not stop there.
You should also find out if access to the scene is restricted just to the media, or to the public as a whole. The media should have at least as much access as the general public to a scene.
Also, find out if there is a threat to public safety and what it is. If the police have good reason to fear you will be blown to bits if you enter a property, they probably have the authority to exclude you from a scene.
It’s important, too, to sense the “urgency” of your reporting an event. In determining whether a reporter acted reasonably, courts frequently examine the particular circumstances under which the reporting occurred. For example, breaking the rules while covering an event whose “newsworthiness” is less likely to be affected by the passage of time — therefore allowing you a reasonable opportunity to contact the relevant authorities for permission or clarification on covering the event (or appealing a decision made by someone on the ground to their supervisor) — will likely be viewed by a court with a more critical eye than your good-faith attempt to cover urgent, breaking news that could impact public safety.
You will also want to find out when the access restrictions are expected to be lifted; courts are more likely to rule that access limitations are reasonable if they only last for a limited time. 7
All that said, in some circumstances, you will find that it’s simply best not to ask questions to which you don’t really need answers. In other words, if you are in a place that you reasonably believe you have a right to be, a place where you’ve not been told (in person or by posted policy) to leave and in a position to gather the information you need safely and unobtrusively — do so. Don’t flash your press credentials or your fancy camera and start asking for permission. Quickly and quietly take the notes you require and discreetly snap the photos or take the video you need. And then leave. Some officials — particularly some law enforcement officials — have an instinctive knee-jerk reaction to news media; it makes no sense to invite a confrontation that can be avoided.
All in all, the determination of whether you want to stay or leave is up to you, but remember, the First Amendment will not protect you from arrest for trespass charges if you unreasonably disobey police orders at a news scene.
The key is to stay calm and state the reasons you believe you should be given access to a scene in a convincing manner. This is not always easy, and in some situations it can be exceedingly difficult. Take a step back and think about what might change your mind if you were in the official's position.
Also, depending on where you are, you may want to find a spot close to the scene and stay there until the restrictions are lifted or until you are able to speak to someone with more authority.
Police, just like reporters, often respect perseverance in an investigation, and the more you demonstrate in a firm and polite manner that you intend on pursuing the story, the more they may respect you.
Finally, every reporter's goal should be to work with authorities in a friendly and professional manner. But on the off chance you are arrested at a news scene, you want to be prepared.
In such an event, give police your name and other identifying information. Inform them that you are covering a story for your student news organization. Also tell police that you believe their action is illegal and that you will not say anything more until you talk to a lawyer.
Even with the best of precautions, be aware that it’s possible for journalists who get too close to a disaster, riot or other volatile scene to get swept up in the chaos. In 2004, when Beth Rankin, a reporter with The Daily Kent Stater , went to cover the Republican National Convention in New York City, she found herself in the middle of a street rally in Union Square. 8
“There was a lot of tension and riot cops were everywhere,” Rankin said, “I had never seen such large riot cops before. A police officer yelled that everyone was going to be arrested and we better just sit there.”
Rankin attempted to show the police officer her Stater press pass, but to no avail. “He didn’t listen, just zip tied my arms and sat me down on the corner,” Rankin said.
Before sending a reporter to cover a contentious scene, editors should establish a newsroom policy in the event that one of their own is put behind bars. Field journalists should always bring multiple forms of identification, at least $50 in cash to post bond, and establish a meeting point with other reporters in case anyone gets into trouble.
Covering news at school
It is extremely important that reporters — especially student reporters at public schools — have the access and freedom to cover their schools so that the public can know how students are being educated, how its tax money is spent, and what events — be they bake sales or stabbings — take place on school grounds.
When covering news at public schools, there are a few principles to keep in mind. (It is important to note that private school officials generally have much more leeway in controlling access to their privately owned facilities.) Among them:
Covering news at a shopping mall
In many communities, malls have become the modern version of the "town square," hosting a variety of civic and social events. That means news.
Malls, however, are usually privately owned, and mall management often excludes the news media, people who want to hand out pamphlets or people conducting political protests.
The U.S. Supreme Court has recognized that the more property owners open property to the public, the less control they have over the property. However, the Court ruled in PruneYard Shopping Center v. Robins , 100 U.S. 2035 (1980), that there is no federal constitutional right to free speech in privately owned shopping centers. Some state courts on the other hand have found that their state constitutions may provide more expansive free speech protection and access rights than the federal First Amendment. For example, courts in California, Colorado and New Jersey have held that there are some free speech rights available to individuals in shopping centers. 14
If you want to cover a mall story, call ahead to find out what the mall's policy is on media coverage, and if you disagree with it, check your local law. Regardless of a mall’s policies, it is never legal for mall security to confiscate a journalist’s camera, audio recorder or memory card as “punishment” for gathering news on mall property. If you or your belongings are seized, get non-mall law enforcement — and a lawyer — involved immediately.
In order to help ensure access to a scene, you may want to inquire about obtaining a press pass from the local police department if they offer them.
A press pass may not grant you access to a scene, but it will identify you as a member of the news media who should be allowed access if access is allowed for anyone.
Obtaining a press pass normally should not be a problem. Generally it requires a trip to the police station to fill out forms, verify your identity and maybe pose for a photo. Occasionally, however, student journalists have run into roadblocks. 15
For instance, Massachusetts State Police denied issuing press credentials to a Boston College journalist because, according to the police, students are not members of the “professional” media.
Several courts, however, have ruled that government agencies cannot arbitrarily decide who gets a press pass and who does not. 16
Courts have also recognized that giving certain members of the media favorable treatment over others could be contrary to the First Amendment. When one media outlet is given access and another is denied, it allows the government to influence the kind of media coverage a public event will receive. 17
Convince police that even though you are a student reporter, you take your job seriously and will be able to conduct yourself as professionally, composed and non-disruptively as commercial journalists.
Subpoenas, search warrants and confiscation of reporter's notes and film
Officials have been known to try to take away notes and film at a news scene. You want to be prepared for such a situation should you ever encounter it.
For example, Paul Gleason and Kyle Smealie, two journalists from Annandale High School in suburban Washington, D.C., had pictures from their digital camera deleted by a police officer after the students photographed a cluster of squad cars not far from school.18
Gleason and Smealie later met with police officials where department heads apologized to the students for the officer’s conduct.
If a law enforcement or school official tries to confiscate your notes or film, protest the confiscation right away. Keep your cool, but such action is almost always illegal, and the official should be told so politely — but in no uncertain terms.
If the official insists or you are threatened with arrest, you will generally want to hand the material over. But again, make it absolutely clear (ideally with witnesses present that are available to record or at least confirm your version of events) that you are doing so under protest and you intend to contest their action to their superiors. Then do so. You will usually win.
For example, Washington Times reporter Susan Ferrechio had a notebook taken by school officials at Marcus Garvey Public Charter School in Washington, D.C., in 1986; school officials, including the principal, were convicted of misdemeanor assault charges.19
If you are at a news event where it appears a confrontation could occur, consider giving your newsgathering material, such as photo memory cards or audio chips, to a colleague who can exit the trouble zone while you pop in a new card and continue to cover the event. Setting up such a relay system back to the newsroom has served news organizations well.
If you are subpoenaed in connection with a court case (a subpoena is a legal notice that orders people to testify in court or bring information to court), you should contact an attorney and see if you can get the subpoena quashed (or nullified).
The reporter's privilege is a First Amendment-based privilege based on the assumption that news gathering efforts will be chilled if reporters are forced to give up confidential sources and testify about other matters learned during the news gathering process. 20
Additionally, most states, but not all, have enacted shield laws that create a statutorial privilege for reporters.
While there have only been a handful of cases involving student media, such protections — with a few exceptions — will normally cover students like any other journalist. 21
While court-issued subpoenas to student journalists are fairly rare, students are more often asked to reveal confidential information by school administrators who are investigating misconduct.
No court has expressly decided whether a student journalist may claim a privilege or the protection of a shield law against inquiries by school administrators. A student's best argument against compelled disclosure is that school administrators — unless they seek the information through formal legal channels such as obtaining a subpoena — lack the authority to force students to reveal information. 22 If an administrator is demanding information, politely ask to consult an editor, a parent and a lawyer before complying. If the administrator threatens punishment for non-compliance, then politely ask to see the school regulation under which you’re being threatened with punishment. The “regulation” probably does not exist.
Subpoenas that order you to bring information with you to court are called subpoenas "duces tecum." These subpoenas have caused some journalists to question whether they should regularly destroy their old notes and negatives. (You should never dispose of your newsgathering material after a subpoena has been issued; this could land you in serious legal trouble.)
Most media attorneys agree that there is no simple right or wrong policy regarding the retention or destruction of notes and other news gathering material. Sometimes notes can help, sometimes they can hurt. The one thing that all lawyers agree on, however, is the need for a consistent newsroom policy. If, for example, you keep notes for three months before throwing them away, follow that policy in every case. If you destroy notes, destroy them consistently.
Another potential situation you will want to be prepared for as a student journalist is the execution of a search warrant.
In a case called Zurcher v. Stanford Daily , which involved a search of the newsroom of the Stanford University student newspaper, the U.S. Supreme Court found that newsrooms are as susceptible to search warrants as private residences.23
Responding to Zurcher, Congress passed the Privacy Protection Act of 1980, which states that law enforcement officials may not seize work product documents or other documents possessed by the media.24
Newsroom searches are allowed only in a few limited — and rare — situations, including when the government can prove that the information it is looking for is needed to prevent death or serious injury, or when the government can prove that the person who has the information most likely committed a crime, and the information they possess is relevant to the crime.25
In addition to the Privacy Protection Act, many states have passed laws that limit search warrants against the press. Contact your state press association or the SPLC for details.
Open meetings and records laws are often called "sunshine" laws because of the light they shed on government proceedings.
Take advantage of them.
Reporters, as well as other citizens, regularly take advantage of open meetings to stay informed.
Open meeting laws
You never know what you are going to find when you go to a government meeting.
Meetings can range from orderly, polite blessings of democracy to disorderly and angry battles that nearly end up in a fistfight in the parking lot.
Many public school students might be surprised to learn the information they can glean about their school from attending, for example, a school board meeting.
Topics discussed at school board meetings can range from the hiring of new teachers and their qualifications to whether funding for arts and music programs should be continued.
Not only that, but students — high school students in particular — might get to see a side of their school superintendent or principal that they do not get to see during the school day.
The key to attending meetings is regular attendance. Like everything else in news gathering, you never know when something important is going to happen. And the more you are around, the more people will get used to your presence and the more likely they will be to let their guard down and talk to you frankly.
Open meetings laws exist in all 50 states, and they often also apply to meetings held at public schools, colleges and universities.
In 2005 at Hostos Community College in New York, a student attempted to attend a closed meeting of the College Senate — a board composed of faculty, students and administrators. During a closed session, the senate approved recommendations to change the college curriculum during a secret vote.
A court later ruled that because the City University of New York’s Board of Trustees — which oversees the College Senate — is subject to open meetings laws, so was the College Senate. 26
Open records laws
Records can also be an important part of the news gathering process.
Using an open records law is usually as easy as simply asking the appropriate official for a copy of the record — or writing a letter. To make things easy for you, the SPLC Web site includes an automated freedom of information law letter generator you can use. 27
Like open meetings laws, open records laws also exist in all 50 states.
If it is federal records you want to access, check out the federal Freedom of Information Act (FOIA). 28
Public records abound, and creative use of them can lead to excellent stories.
For instance, student journalists at Desoto High School, just south of Dallas, used public records to reveal that a company hired by administrators to study the school’s gang problem lied on its application. 29
The company, Project JAMS (Just Another Means of Success) falsely claimed to have worked with several schools in the past, including Columbine High School after the 1999 shootings there.
Public records can also be useful for finding people; you cannot talk to a source if you cannot find them.
Telephone books and reverse directories — which will give you a name and address from a phone number, for example — are available in most public libraries and online and are both excellent places to find information.
The laws on motor vehicle records vary from state to state, but often you can find a name and address from a license plate number and vice versa.
City, town and court property records can tell you everything from who owns a particular piece of property and the property's assessed value to whether tenants have filed complaints about the property's upkeep.
Property records might be of particular interest to college journalists who are trying to keep students who are new to renting apartments informed on the issues involved.
One obstacle that occasionally confronts reporters is the federal Family Education Rights and Privacy Act (FERPA) (otherwise known as the Buckley Amendment ) that was passed by Congress in 1974 to ensure students access to their educational records and to protect students from unauthorized dissemination of their records. 30
Because of FERPA, many records having to do with a student's academic life, and even those that are extremely newsworthy, can be either difficult or impossible to obtain by outside parties. Unfortunately, however, FERPA is frequently abused by school officials and pointed to as an all-purpose excuse to avoid disclosure of information that should be available. It’s important, therefore, that all reporters covering schools understand the basics of FERPA and more information is available on the SPLC Web site. 31
Law enforcement records
Your access to law enforcement records will generally depend on the agency you are dealing with. Some police departments are very open about records, but others release the bare minimum to stay in compliance with the law.
Daily police blotters, incident reports, investigation reports, arrest and booking logs, miscellaneous crime records, accident reports, parking ticket records, 911 tapes and transcripts, criminal histories, safety policies, security budget reports and incident reports at specific addresses are among the police records you may want to ask for at any given time.
For more information about covering crime, see the SPLC's publication Covering Campus Crime: A Handbook for Reporters.
Court records and proceedings
Open meetings and records laws may not necessarily apply to legislative and court hearings; however, these proceedings and the records surrounding them, for the most part, are also open to the public.
Criminal, civil, divorce, bankruptcy, and probate records can all be extremely valuable sources of information — and all you have to do is go in and request them. 32
When it comes to court records, however, you may want to call ahead and find out if the court requires record requests to be in writing. You may also want to ask what kind of information would be most helpful in a clerk's search for the records you want.
The job of a court clerk is always made easier if you come armed with as much information about the records you are trying to obtain as possible (for example, parties' names, dates of birth, approximate case dates, etc.).
Juvenile criminal records are generally not available to the public, but check your state law. 33 An increasing number of states have opened juvenile records and court proceedings if the defendant has committed a felony or other adult-like offense. 34
While excellent stories can be found in press releases, from phone calls and on bulletin boards, only the glory-seeking and the attention-thirsty will receive coverage in your newspaper if you stick to these sources. You owe more to your readers.