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Summer 2009 Bulletin
FOIA and Access
Courts, Police Decline to Extend Privileges to Reporters
No Special First Amendment Right of Access for Members of the Media
State and federal courts declined to extend a First Amendment right of access to accident scenes, protests, and school property for members of the media in the spring and summer of 2009.
Oakland Tribune Photographer Loses Suit against City Police
Ray Chavez, a staff photographer from the Oakland Tribune, lost a civil suit against the city of Oakland and its police department on June 22, 2009 when Charles Breyer, U.S. District Court Judge for the Northern District of California, ruled that Chavez had no First Amendment right to photograph a highway crash scene. Chavez sued under 42 U.S.C. § 1983, which allows citizens to sue government officials for civil rights violations.
According to the court order in Chavez v. City of Oakland, 37 Media L. Rep. 1905 (N.D. Cal. 2009), Chavez was driving down a California highway when he and several other motorists came upon the scene of a traffic accident. Chavez got out of his car and began taking photographs of the scene, wearing his press pass around his neck. Before leaving his vehicle Chavez placed his Oakland Police Department-issued press parking pass in the windshield.
After approximately 15 minutes at the scene, Chavez was asked by Kevin Reynolds, a member of the Oakland police department, if he had witnessed the accident. Chavez responded that he had not, and Reynolds told Chavez to get in his car and leave. After Chavez responded that he had a right to cover accident scenes as a member of the press, he was told by Reynolds that “he didn’t care, that [Chavez] had to go back to [his] car and leave because [he] didn’t ‘need to take these kind of pictures.’”
While returning to his car, Chavez continued to take pictures of arriving highway patrol officers. According to Breyer’s order, Reynolds and another officer then grabbed his camera and handcuffed him, forcing him to sit down on the highway near the overturned car for approximately 30 minutes. When the police released Chavez, he was warned by the officers “not to ever come there again and take those kind of pictures.”
In the order granting summary judgment in favor of the city of Oakland, Breyer cited Houchins v. KQED, 438 U.S. 1 (1978) and Branzburg v. Hayes, 408 U.S. 665 (1972) to support the proposition that “the press has no First Amendment right to access accident or crime scenes if the general public is excluded.” Breyer stated that Chavez had failed to prove that the general public had a legal right of access to accident sites and stated that “common sense dictates that members of the general public are not allowed to exit their cars in the middle of the freeway to view an accident scene.”
Breyer also stated that the police acted reasonably in arresting Chavez for violating Cal. Veh. Code § 22400(a), a traffic statute directing that “[n]o person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with the law.” Breyer stated that “the Vehicle Code does not provide an exception for people who briefly exit their car on the freeway to take photographs – it prohibits the stopping of the car period.”
In a June 3 Tribune story, Chavez, who was named photojournalist of the year in 2008 by the National Association of Hispanic Journalists, said he was disappointed by the decision, saying it was “unfair, not only for me, but for all journalists, because it can happen to them, too.”
Chavez’s attorney, Terry Gross, told the Bulletin his client filed a notice of appeal of the federal judge’s decision on July 2. According to a June 4 San Francisco Chronicle story, Gross said Chavez also plans to file a suit in state court, noting that Breyer did not address the issue of whether police might have violated California state law. Cal. Penal Code § 409.5 allows law enforcement and other emergency responders to close an area where “a menace to the public health or safety is created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster.” However, the law also states that “[n]othing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.”
West Virginia Judge Rules Journalists Cannot Trespass to Cover Environmental Protests
Two photographers covering environmental protests on a rural West Virginia mountaintop mine were appropriately included in a restraining order barring the protesters from entering the mining company’s property, a judge ruled June 1.
Raleigh County Circuit Judge Robert Burnside held that photojournalists who accompanied protesters should not be excluded from a preliminary injunction obtained by mining company Massey Energy against the protesters. Burnside rejected the journalists’ First Amendment claims to a newsgathering privilege, saying that trespassing laws applied equally to reporters and protesters, according to a June 1 story in The Charleston (W.Va.) Gazette.
Massey lawyer Sam Brock had urged Burnside to put a stop to “people just willy-nilly coming onto (Massey) property just to get their picture taken,” and said that the activists should not “be allowed to run roughshod over the countryside,” the June 1 Gazette story said.
The photographers, Chad Stevens and Antrim Caskey, who have been covering mountaintop removal in West Virginia for several years, were both given trespass citations after separate February protests on the mine’s property were broken up by police. The mining company later successfully filed for restraining orders against the journalists and protesters, The Gazette reported.
Caskey, a photojournalist who has been reporting on the work of environmental activist group Climate Ground Zero since 2008, considers herself “embedded” in the group, according to a May 2 story in the Beckley, W.Va. Register-Herald. Her photographs of the group have been published on the Climate Ground Zero Web site, as well as on a Charleston Gazette blog called Coal Tattoo. Caskey said her relationship with the group is sometimes misunderstood. “I’m just lumped together with the activists because of my reporting and it’s sympathetic, apparently,” Caskey said in a March 23 story from the Reporters Committee for Freedom of the Press (RCFP). “But I’m just talking to people. I’m just pointing my camera.”
Caskey has been cited three times for trespassing at Massey Energy sites while accompanying Climate Ground Zero to protests. On April 16, after the initial restraining order naming her had been issued, Caskey again accompanied members of the group to a protest on Massey property. The entire group was arrested and charged with violating the temporary restraining order. “I was not causing any harm,” Caskey said in a June 3 RCFP story. “I was not stopping any traffic. I was not protesting. I was shooting an event.”
On May 1, Burnside found Caskey and four protesters guilty of violating their restraining order, according to a May 2 story in The Register-Herald. At the hearing, Roger Forman, the attorney for Caskey and several protesters, argued that she should not be held in contempt and that as a journalist she had a privilege to document Climate Ground Zero’s work. But Burnside disagreed. “No such privilege exists,” he said, according to the story.
Stevens was initially cited while covering a February 3 protest on Massey property as part of an alternative energy documentary he had been working on, according to the February 27 complaint. Stevens photographed members of Climate Ground Zero as they chained themselves to a bulldozer and an excavator. When police arrived to break up the protest, Stevens was given a trespass citation.
On June 1, Burnside began a two-day hearing addressing whether to grant a preliminary injunction that would essentially extend the duration of the restraining orders to keep the protesters and journalists off Massey property, The Gazette reported. Burnside rejected claims from both Caskey and Stevens that the court orders would infringe on their First Amendment right to gather news, and granted the preliminary injunction. Both Caskey and Stevens said they would appeal Burnside’s opinion.
Massey attorney Niall A. Paul said in the March 23 RCFP story that it was unclear that Caskey was a photojournalist when the citation was issued. However, she was still trespassing, he argued, and was standing in the middle of a road, putting herself and others in an unsafe situation. “It’s not that she’s been prohibited from taking pictures,” Paul said. “As long as she’s not trespassing.”
Appellate Court Permits School to Ban Reporter from Property
A federal appeals court panel dismissed a reporter’s lawsuit claiming that his exclusion from school property in Buchanan County, Va., violated his First Amendment rights.
Earl Cole of The Voice newspaper of Buchanan County claimed the ban was imposed in retaliation for stories he had written that were critical of the county school board, but a unanimous three-judge panel of the 4th Circuit U.S. Court of Appeals ruled on May 14 in Cole v. Buchanan County School Board, 37 Media L. Rep. 1787 (4th Cir. 2009), that school boards have broad authority to control access to school property, and that the exclusion of Cole was reasonable.
According to the opinion, the school board voted to ban Cole from the school property in October 2006 for repeatedly taking pictures and conducting interviews at schools without first signing in at the principal’s office. Cole then brought a claim under 42 U.S.C. § 1983, alleging the board violated his First Amendment rights in retaliation for his writing critical reports and opinions about the school board.
The board resolution stated that Cole would be banned from school property “during operational hours while school is in session and students are present, except upon express written invitation or to attend a public board meeting or to exercise his right to vote,” because he had been observed “on school property on multiple occasions hiding around trees and/or bushes either loitering and/or taking photographs and has repeatedly ignored posted signs informing all visitors that they must report to the office upon arrival … many parents and teachers have expressed concern about Mr. Cole’s actions … especially when children are present while school is in session.”
The unanimous 4th Circuit opinion by Judge Allyson Duncan reversed a federal district court decision that denied the school board’s motion to dismiss Cole’s suit. The 4th Circuit said that it was “skeptical that Cole’s First Amendment rights were in fact chilled, as required to establish a First Amendment retaliation claim.” The court noted that Cole owned the newspaper he wrote for and said he could have assigned other reporters to cover stories requiring entry onto school property. The court also said that Cole remained free to watch or take photographs from the public spaces outside the school grounds, and that Cole was not prohibited from interviewing individuals associated with the school when not on school property. Duncan also said that reporters in the “rough and tumble” political arena do not necessarily have a legal remedy when government officials are unwilling to talk.
Duncan also cited Supreme Court precedent supporting the proposition that public schools are not deemed public forums, based on United States v. Kokinda, 497 U.S. 720 (1990), and that a school board has inherent authority to restrict access to the property that it controls, based on Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
“The appropriate inquiry here is whether a reasonable Board member could have believed that banning Cole from the Buchanan County school grounds was lawful, in light of clearly established law and the information Board members possessed,” Duncan wrote. “Given the breadth of the Board’s authority to control access to school grounds and the factual information the Board possessed [about Cole] at the time it passed the resolution at issue, a reasonable Board member may well have believed it was his or her duty to ban Cole from school grounds in order to protect both the safety of the students and the integrity of the educational process.”
U.S. District Court Judge James P. Jones had previously turned down the board’s request to dismiss Cole’s suit before trial, but the appellate court ordered Jones to dismiss the suit.
Detroit Reporter Convicted of Resisting and Obstructing Police
A Michigan jury convicted reporter Diane Bukowski on May 1 of two felonies for her actions at the scene of a fatal motorcycle accident involving state troopers. According to a June 2 Detroit Free Press story, Bukowski was sentenced to one year probation, a $4,000 fine, and 200 hours of community service.
Bukowski, a freelance reporter for the weekly independent publication The Michigan Citizen, was convicted of two counts of “resisting, obstructing, opposing, and endangering two Michigan state troopers” at the scene of the crash on November 4, 2008. Each count was a felony punishable by up to two years in prison, the Detroit Free Press reported May 2.
According to the Free Press, Bukowski said she had identified herself as a reporter and showed her credentials to three state troopers at the scene of the crash and was taking photos of two yellow tarps and a crushed motorcycle when police arrested her and deleted some of her photos. Advocacy group the Committee to Protect Journalists (CPJ) reported May 6 that Maria Miller, an assistant prosecutor for Wayne County, said Bukowski “was resisting by not complying with the police order” not to enter the crime scene area, “and she was asked not to take pictures of the two deceased men.” The aftermath of the scene, including most of Bukowski’s arrest, was captured on video, and is available on a local FOX affiliate’s Web site at http://tinyurl.com/Bukowski-Arrest.
CPJ reported that a Michigan state trooper admitted in court that he had seized Bukowski’s camera after her arrest and, while still at the scene of the incident, erased two pictures. The judge orally reprimanded the state trooper who deleted the images, CPJ reported, but no charges were filed.
Bukowski’s report of the accident in The Citizen included an anonymous witness who said that “The police rear-ended the motorcycle and the man on the motorcycle lost control and hit [a pedestrian], then the driver flew off the motorcycle into a pole.” The eyewitness report conflicted with police reports that the motorcycle ran a red light before hitting a pedestrian.
The Michigan chapter of the American Civil Liberties Union (ACLU) filed an amicus brief in support of Bukowski’s motion to dismiss the charges. “The case at bar raises important issues, including whether the First Amendment rights to freedom of the press are being abridged by a prosecution that is pursued for retaliatory or other improper purpose,” the brief said.
The case against Bukowski is particularly troublesome, the group wrote, because of her “long, distinguished history of exposing government irregularities and corruption.” The ACLU specifically noted that Bukowski has reported on allegations of illegal strip and cavity searches by Detroit police and the refusal of Wayne County prosecutors to prosecute police involved in killings.
“The danger is real that any ruling or verdict by the court that is adverse to the defendant’s interest (whether deserved or not), will be perceived by many as retaliation for her journalistic work,” the ACLU wrote. “These suspicions can be bolstered by questions about why the defendant is being prosecuted zealously given the absence of allegations that any real harm in the way of physical injuries or property damage resulted from her actions.”
Miller, in a February 20 story in the Michigan Messenger,said“We do not bring cases to retaliate,” adding, “[Bukowski’s] case was charged and is being prosecuted because we believe we can prove beyond a reasonable doubt the charge in this particular case.”
Wayne County Assistant Prosecutor Thomas Trzcinski said in the CPJ story that by taking pictures at the accident scene Bukowski endangered state troopers who were trying to control the area. “It is more likely that peace is going to be maintained if these images are destroyed,” Trzcinski said.
Citizen publisher Catherine Kelly said in the May 2 Free Press story that Bukowski will appeal, calling the verdict “dangerous for all of us.”
In a May 21 Free Press story, Bukowski said she had turned down an offer to plead guilty to two misdemeanors because she believed she had done nothing wrong. “I feel there’s clearly a motivation behind the severity of these charges,” Bukowski said. “I thought this all was a misunderstanding. I told the police that I would leave and there was no need to arrest me.”
– Jacob Parsley
Silha Research Assistant
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