Wild horses drag a federal appeals court to a generous First Amendment interpretation



Laura Leigh's "newsroom" is a dusty Nevada prairie, which she traverses in a battered 1998 Ford pickup in search of images for a magazine and blog focusing on the federal culling of wild horse populations.

As described in a colorful Las Vegas Review-Journal profile, Leigh has become a persistent, if affectionately tolerated, antagonist to the Bureau of Land Management and those who run its wild horse capture program. She is hardly what most people first picture when they hear the word "journalist."

But Leigh uses the tools and methods of journalism to convey her outrage over the suffering of horses who are at times grievously injured during the panic of a roundup. And when Leigh's access to a September 2010 roundup was restricted by the BLM, she invoked a journalist's best friend -- the First Amendment -- and took the government to court.

Leigh's case produced a recent ruling from the California-based Ninth U.S. Circuit Court of Appeals that may expand the range of places and events to which journalists can demand access under the First Amendment.

The U.S. Supreme Court has famously said that there is no generalized First Amendment right to be someplace that news is happening.  Yet lower courts have fashioned a limited right, grounded in the First Amendment, to have access to government proceedings that traditionally have been accessible, where access advances important societal objectives.

That right historically has focused on government proceedings (chiefly, criminal trials) and on government documents.

But in Leigh v. Salazar, the Ninth Circuit U.S. Court of Appeals decided Feb. 14 that the "fundamental right" to access can encompass any government activity, even activity conducted from a helicopter hovering over the plains of Nevada:

[A] court cannot rubber-stamp an access restriction simply because the government says it is necessary. By reporting about the government, the media are 'surrogates for the public.' … The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. Thus, courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.
The panel sent the case back to the district court, to weigh whether the restrictions keeping Leigh away from the scene of BLM roundups are "necessary for safety or other legitimate reasons."

Assuming that the government does not successfully challenge it further, the ruling in Leigh's case may stake out a new high-water mark for the constitutional rights of photojournalists and videographers, who so often clash with authorities over access to crime scenes, disasters, riots and protests.

Indeed, the idea that any "government proceeding or activity" is presumed open to media coverage unless the government can provide some overriding justification for closure has potential application in many other contexts -- such as the retaliatory exclusion of disfavored journalists from government briefings or news conferences to punish those whose coverage is deemed overly "negative."

When combined with an August 2011 ruling from a federal appeals court in Boston that found a First Amendment right to record the activities of police doing their jobs in public, the law appears to be evolving in a common-sense direction favorable to the public's right to watch and record government functions.

That is welcome news -- but it is not by itself enough, since few rank-and-file police officers are trained legal scholars versed in the latest constitutional case law. Better training for government officials at all levels -- and some common-sense precautions that journalists in the field can take to protect themselves -- are still the best preventive measures to keep a hot-news scene from turning into a federal case.

 

 

Tagged: First Amendment, newsgathering, Photography and Videography