High court rulings forever change relationship between media, law enforcement

Tuesday, May 25, 1999

The producer of the reality-based “Cops” show says gamely that it will be “business as usual” at his program, even after the Supreme Court ruled yesterday that police violate the Constitution when they invite the media along on raids inside private homes.

But almost no one else agrees with John Langley, producer of the syndicated Fox series. The traditional symbiotic relationship between police and the media that made “media ride-alongs” commonplace nationwide, is forever changed by the court’s unanimous decisions in Wilson v. Layne and Hanlon v. Berger.

“This is going to cause law enforcement officers to be very cautious about allowing the media to ride along in all sorts of circumstances,” said Lee Levine, who represented media groups in the cases before the high court.

“This may dampen officers’ desire to take media with them,” said Minneapolis police spokeswoman Penny Parrish. “This is one more thing on the side of ‘Is it worth it?’”

The actual words of the ruling don’t require that level of caution, most analysts agree. The court drew a bright line at the doorstep of private homes. Outside that line, in areas that are visible or accessible to the public, the court ruling implied that the media could continue to observe police activity.

But inside the home, the court’s ruling says, it is not appropriate for police to bring anyone along who is not necessary for the police to do whatever it is they went to the home to do, whether to make an arrest or to conduct a search.

“It is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant,” Chief Justice William Rehnquist wrote for the court.

Reflecting the court’s increasing sensitivity to privacy concerns, Rehnquist went on to recite the history of the home-as-castle theory that animated the Fourth Amendment. That amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In a 1972 decision, Rehnquist recalled, the court said, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, commented, “The decision was about home, home, home. I’m sure that if you did a word count, ‘home’ would be the most commonly used word.”

Which is why Kirtley and others think that shows like “Cops” will have to alter their practices. Before the decision, camera crews would accompany police through the entire raid, all the way inside homes in many cases, and then afterward obtain releases or permission from the homeowners targeted. With remarkable frequency, homeowners would give after-the-fact permission to use the footage.

But now, it would seem, in order for the media to go along with police inside a home, they would have to obtain permission from the homeowner beforehand – an unlikely scenario in a situation where the element of surprise is important to police. More likely, police won’t invite the media along at all, or will keep them outside the home while they go in.

“Outside the door, that’s where the cop shows will huddle,” Kirtley said. She says under common law definitions, places of business would probably not be viewed as being as private as homes.

Richard Cordray, lawyer for the law enforcement agencies involved in the Supreme Court cases, predicted that “98 percent” of the access media currently have to police will survive the ruling. “The decision should not be overread,” he said.

Cordray was pleased about another aspect of the ruling. The court agreed that the law enforcement officers involved in the two cases before the court — fish and wildlife agents in the Montana raid accompanied by CNN, and federal marshals and local police in the Maryland raid observed by The Washington Post — could not be held liable for damages for the constitutional violation committed when the media were invited along. The rule was not clear enough at the time of the raids, the court said in an 8-1 vote, for police to know they should not have brought media representatives with them.

Meanwhile, other First Amendment advocates were scouring the opinion for signs of the court’s attitude toward the media and newsgathering. As they were framed before the court, the cases were mainly about the Fourth Amendment violation and the police liability for it, not about the First Amendment.

But there was language that was both ominous and helpful for the media in yesterday’s decision.

On the negative side, from the media point of view, the court attached relatively low importance to the interest of the press and public in maximum access to law enforcement activities.

Rehnquist noted that the police tried to justify the media presence as furthering the law enforcement objectives of publicizing their work and facilitating accurate reporting of police activities.

“No one could gainsay the truth of these observations, or the importance of the First Amendment in protecting press freedom from abridgement by the government,” Rehnquist wrote. “But the Fourth Amendment also protects a very important right, and in the present case it is in terms of that right that the media ride-alongs must be judged.”

The media are fond of saying that the First Amendment came first in the Bill of Rights for a reason, so when the Supreme Court says the First Amendment must bow to another right, it is taken as a bad sign.

“It’s very troubling,” says Kirtley. “Who is the bigger invader of privacy, the guy with the gun and the handcuffs, or the guy with the camera?”

But there is another aspect of the decision that might prove helpful to the media, at least in the short term. Another case involving CNN and the Montana raid is pending before the Supreme Court. In that case, brought by the family whose house was raided, a federal appeals court ruled that CNN personnel, through their ride-along arrangement with the federal agents, had become “state actors” who could be said to have violated the Fourth Amendment in the raid in the same way that the law enforcement officers did.

In yesterday’s ruling, the court said in passing that the media’s presence in ride-alongs did not serve any law enforcement objectives, except in the most general sense. That language may help CNN in fighting the related case. If the media invited on a ride-along serve no law enforcement purpose, the argument would go, how can they be viewed as state actors? CNN would not comment yesterday, but it will surely be watching to see what the high court does with the companion case.

The justices, as early as next week, could agree to consider the CNN case, or could return it to lower courts for consideration in light of its decision yesterday.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.