24 May 1999
Live footage of law enforcement activity taken by media "ride-alongs" has become so common place that it has even become a staple of TV shows like "Cops" and "Rescue 911." A ruling by the U.S. Supreme Court last month has sharply cut back the permissible scope of coverage provided by media "ride-alongs" and may well affect other on-the-spot coverage of law enforcement operations. In the consolidated cases of Wilson v. Layne, ___ U.S. ___, 1999 WL 320817 (May 24, 1999), and Hanlon v. Berger, ___ U.S. ___, 1999 WL 320818 (May 24, 1999), the Court held that law enforcement officials violate the Fourth Amendment when they permit media representatives to accompany them during the execution of a warrant in a private home. But precisely where the line now falls between legitimate news coverage and invasion of privacy remains an open question.
Media "ride-alongs" of the type at issue in Wilson and Hanlon have posed difficult issues for the courts, resulting in divergent and inconsistent decisions. These conflicting decisions reflect competing values — on the one hand, the interest of the public in obtaining newsworthy information and of the media in providing it, and, on the other hand, the interest of property owners in reasonable expectations of privacy.
Until recently, courts rarely found a constitutional problem when news media "rode along" with police officials and photographed or filmed warrant executions on private property. For example, in a widely cited case the Florida Supreme Court held that plaintiffs "impliedly consented" to the entry of news media accompanying fire and police officials into their home after their daughter died in a fire. Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla. 1977). See also Henderson v. Colorado, 879 P.2d 383 (Colo. 1994) (en banc); Magenis v. Fisher Broadcasting, Inc., 798 P.2d 1106 (Or. App. 1990).
In 1994, however, the Second Circuit dramatically pronounced in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), that "[a] private home is not a soundstage for law enforcement theatricals." A Secret Service agent had obtained a warrant to enter the home of a credit card fraud suspect and invited members of a CBS-TV crew from the "Street Stories" show to accompany him. The court affirmed denial of the agent’s qualified immunity defense on the ground that the crew’s videotaping of private effects served no law enforcement purposes. Similarly, in Hagler v. Philadelphia Newspapers, Inc., 1996 WL 408605 (E.D. Pa. July 12, 1996), the court supported its denial of qualified immunity by reiterating that "[a] search warrant is simply not a press pass."
Other courts, however, upheld the propriety of media participation in police raids. In one such opinion, for example, the Eighth Circuit observed that "most courts have rejected the argument that the United States Constitution forbids the media to encroach on a person’s property while the police search it." Parker v. Boyer, 93 F.3d 445 (8th Cir. 1996). See also Stack v. Killian, 96 F.3d 159 (6th Cir. 1996); Reeves v. Fox Television Network, 983 F. Supp. 703 (N.D. Ohio 1997).
To resolve this debate, the Supreme Court announced last November that it would review conflicting decisions from the Ninth Circuit (Hanlon) and the Fourth Circuit (Wilson) that addressed the propriety of media ride-alongs.
In Hanlon, the Fish and Wildlife Service (FWS) and CNN executed an agreement permitting CNN to film the execution of a search warrant on a rancher suspected of killing eagles, an endangered species. CNN wanted footage for TV shows on environmental topics, and the agency wanted publicity for its efforts to combat environmental crime. FWS obtained the search warrant but did not inform the issuing judge of the planned media participation.
One of the FWS agents entering the ranch was wired with a hidden CNN microphone that continuously transmitted live audio to the CNN technical crew. CNN also videotaped the episode and later broadcast substantial portions of it. Although the rancher had agreed to the agents’ entry, he was not told that his conversations were being recorded or that the cameras belonged to media.
The rancher was charged with the taking of endangered species and acquitted on all counts except one misdemeanor. He sued CNN and FWS agents for violation of his Fourth Amendment rights. The Ninth Circuit reversed the district court’s grant of summary judgment to the defendants, holding that their conduct violated the Fourth Amendment and that the FWS agents were not entitled to qualified immunity.
In Wilson, Washington Post reporters, one with a camera, accompanied U.S. Marshals and local police officers in the execution of an arrest warrant at what they thought was a fugitive’s home. Actually, it turned out to be his parents’ home, and the fugitive wasn’t there but his parents were — with little clothes on. They objected to the intrusion, resulting in the suspect’s father being subdued on the floor. The reporters observed and photographed these events, but their photographs were never published.
The Wilsons sued the officers for violating the Fourth Amendment by permitting reporters to enter their home and observe and photograph the confrontation. The district court denied the officers’ qualified immunity defense and motion for summary judgment, and the Fourth Circuit reversed. The court of appeals did not decide whether the media accompaniment violated the Fourth Amendment, but granted the officers qualified immunity on the ground that at the time of the intrusion there was no clearly established Fourth Amendment right against entry by news media covering the lawful execution of a warrant.
The Supreme Court, in an opinion by Chief Justice Rehnquist, unanimously held that media ride-alongs of the type at issue in Hanlon and Wilson violate the Fourth Amendment rights of homeowners. At the same time, the Court granted qualified immunity from liability to the law enforcement officers on the ground that the unconstitutional character of media ride-alongs was not clearly established at the time of the incidents in question.
The Court’s Fourth Amendment holding rested in large part on the "centuries-old principle of respect for the privacy of the home" that is embodied in the Fourth Amendment. It reasoned that, although the warrants authorized the law enforcement officers to intrude upon that privacy, the presence of the reporters was not authorized by the warrants or related to their execution.
The Court rejected contentions that the media presence served law enforcement objectives by helping to publicize the government’s efforts to combat crime and facilitate accurate information about law enforcement activities. The Court stressed that such benefits cannot overcome the fundamental right to privacy in one’s home conferred by the Fourth Amendment. The Court also noted that the media was present primarily to enhance its own private commercial interests, and any furtherance of law enforcement objectives was but incidental and obtainable by the agencies themselves.
Supporters of aggressive newsgathering and the public’s right to on-the-spot coverage of law enforcement activity may be chagrined at the short shrift given by the Supreme Court to their concerns. But the Supreme Court has spoken and answered any doubts about the applicability of the Fourth Amendment. Media accompaniment of law enforcement officers entering private homes to execute a warrant now is plainly unconstitutional. Thus, law enforcement officers who permit such accompaniment no longer can hope for qualified immunity from liability, and media representatives riding along risk tort liability for invasion of privacy and similar claims. In Berger, the Ninth Circuit rejected CNN’s argument that it was immune from liability under the civil rights laws because it is not a state actor, and the Supreme Court now has denied CNN’s petition for certiorari. No. 97-1914 (U.S. June 1, 1999).
However, the Supreme Court has not barred media ride-alongs altogether. There appears to be no constitutional problem with having the media accompany law enforcement officials on regular patrols and even on the execution of warrants up to the private property line of the target. A public sidewalk in front of the targeted house remains public, allowing the media to obtain a front-row seat for the events in question without crossing the privacy threshold. Similarly, if a suspect is arrested, the journey back to the station should be fair game for media coverage.
The Hanlon and Wilson cases have brought into plain focus the fact that Fourth Amendment privacy rights can clash with First Amendment newsgathering rights. Certainly, the media has a critical role to play in keeping the public informed about law enforcement activity, a task it cannot perform if journalists are restricted to collecting facts from standard police reports. Reporters and photographers need to be on the spot, asking questions and reporting what they see as it happens. Going too far in muzzling the media by threats of liability deviates from the longstanding principle that government may not limit "the stock of information from which members of the public may draw." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980).
A decline in public awareness and oversight of law enforcement activity reduces the ability of the public to participate meaningfully in what has become an increasingly vital societal function. Limiting media coverage of law enforcement activity beyond what is necessary to protect privacy rights may widen the gulf between governed and government, thereby jeopardizing the very rights that privacy advocates seek to protect. Indeed, shining the bright light of media coverage on law enforcement often serves to expand, not diminish, constitutional rights. As the Supreme Court repeatedly has explained, "the opportunity for free political discussion" best ensures a government that is "responsive to the will of the people." New York Times v. Sullivan, 376 U.S. 254, 269 (1964).
The Court’s resolution of the issues in Hanlon and Wilson does not in itself conflict with these fundamental "free press" principles. The extent of the media intrusions in those cases provided enough of an opportunity for the Supreme Court to enact some limiting principle against overzealous coverage. The task now is to ensure that media outlets, law enforcement agencies, and the courts develop rational standards to balance the increasingly complex relationship between law enforcement, newsgathering, an informed public, and privacy.