PART IV
Trespass
While media ride-alongs on private property can raise Fourth Amendment issues, newsgatherers who venture on private property without permission of the property owner also can face sanctions from criminal or civil trespass laws. Last summer, eight journalists were arrested after they followed a group protesting U.S. war games and bomb testing on the Puerto Rican island of Vieques. The protesters had broken into a restricted area of the Camp Garcia Naval Installation, and the journalists followed them. The protest on Vieques was one of many that have taken place during the past two years since a civilian security guard was killed in 1999 by a stray bomb. The court held that the journalists were subject to criminal charges for trespassing, especially since journalists had been arrested during a protest a month earlier and released with the understanding that they would not enter the restricted area again. The Puerto Rican reporters argued that the First Amendment exempted them from prosecution because they were on the naval property solely as journalists and not as protesters. They claimed a constitutional right of access to information even if that information isn’t available to the general public. They also argued that “special circumstances” required the court grant them immunity from prosecution. The Puerto Rico District Court rejected the arguments, citing Branzburg for the proposition that journalists are not entitled to access to information beyond that of the general public. The court also referred in a footnote to the 1999 ride-along case Wilson vs. Layne as holding that freedom of the press has limits in the newsgathering context. In a deal with the government, charges against four of the Puerto Rican journalists, who had pleaded not guilty, were dropped in exchange for a guilty plea by their employer, El Nuevo Día, and a nominal fine. The decision to impose liability on the journalists in Vieques reflects well-established law dating to Branzburg and establishing that the application of general laws, such as trespass laws, to journalists does not violate the First Amendment, even when the journalists are merely performing a newsgathering function. In a similar case to Vieques, for example, several journalists who followed a group of protesters on the land of a proposed nuclear power plant in Oklahoma raised a defense that they lacked the criminal intent to trespass because they entered the property to gather news. The appellate court held that the statute under which they were convicted required only a willingness to enter land after being forbidden to do so. Plaintiffs whose primary claim against media is misrepresentation or deception to gain access frequently include trespass allegations in their claim. In La Luna Enterprises Inc. vs. CBS Corp. , news crews got permission to film the interior of a restaurant and nightclub. CBS told La Luna that background footage of the club’s cabaret would be used in a broadcast about tourism in Miami Beach. Instead, CBS used the footage in a story about the Russian mob in Miami. La Luna claimed fraud, defamation and trespass in its suit. The court allowed the trespass claim to go forward because CBS’s crew entered the restaurant “wrongfully and without legal right,” and because Florida law allows a plaintiff to collect nominal damages even if no physical damage occurred. In Desnick, trespass was among Desnick’s allegations, which also included defamation and fraud. ABC got authorization to film in some of Desnick’s eye clinics, allegedly for a story about cataract surgery. ABC also sent undercover “patients” into clinics to get additional material for the story. Because the “patients” got into the clinics under false pretenses, Desnick said they trespassed. In rejecting that claim, Judge Posner wrote, “consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him … to revoke his consent.” He added that the invasion of the clinics was “not an interference with the ownership or possession of land” and therefore did not infringe upon the interest that trespass laws are designed to protect. These cases illustrate that the success or failure of trespass claims often turns on the specific law of the state in which the trespass occurred. In both Vieques and Oklahoma, the journalists were prosecuted under laws that require a person to “knowingly” trespass and to have had “notice of the prohibition of entry.” Had the journalists been able to claim that they did not know that the areas were restricted, the charges likely would have been dismissed. Similarly, in a state that doesn’t allow nominal damages for a trespass claim, the La Luna claims likely would have been dismissed. Part V
