High court takes media ride-along cases but leaves First Amendment behind

Tuesday, November 10, 1998

There is always a slight sense of foreboding among First Amendment advocates when the Supreme Court agrees to hear a case relating to journalistic practices — especially when the case is not framed in First Amendment terms.

The last time it happened, in 1991, the court in Cohen v. Cowles Media regarded the agreement between a journalist and a confidential source, not in First Amendment terms but as a contract that the journalist had violated when he revealed the source’s identity. Without consideration of the First Amendment, the media lost that one.

Ever since that ruling many media organizations, either through caution or stinginess, have sought to keep similar disputes away from the high court, whose sympathies toward the media appeared to have worn thin.

But yesterday, it happened again. The Supreme Court took up two cases in which newsgathering techniques are at the heart of the dispute, yet do not directly involve core First Amendment issues.

The cases are Hanlon v. Berger and Wilson v. Layne, both involving the long-standing and symbiotic journalistic practice of “ride-alongs,” in which broadcast or print media accompany law enforcement officials as they execute a search warrant on private property.

Hanlon involves a raid on a Montana ranch by the U.S. Fish and Wildlife Service, recorded by CNN. Wilson involves a search of a Maryland home by U.S. marshals, accompanied by a Washington Post photographer who took pictures that were never published.

In both instances, the targets of the searches sued the law enforcement officials, claiming that by inviting the press to come with them, they violated their Fourth Amendment rights against unreasonable police searches. Lower courts in the CNN case said the law enforcement officials could be sued, but in the Washington Post case said they could not.

So as the cases come before the high court, they pose Fourth Amendment issues, not First Amendment ones. (A separate suit filed against CNN in the Montana rancher case, which raises the question whether the media become “state actors” when they join the police on a raid is still pending before the court. Media groups were mystified — and worried — about why the court did not act on that case, which raises First Amendment issues more directly.)

In a sense, if the court views the cases through a Fourth Amendment lens, it might be good for the media, which do not want to see ride-alongs disappear. The conservative court usually gives police broad leeway in conducting searches when Fourth Amendment objections are raised. If police want to invite the media along on a raid, the court might be willing to let them do it.

“It seems likely that the court will uphold the searches as not in violation of the Fourth Amendment,” said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. She also says the court is likely to recognize that police have immunity from being sued for allowing ride-alongs, another issue in the case.

But there are aspects of the case that might encourage some of the justices, if not a majority, to disapprove of the ride-along searches. The court is increasingly interested in privacy issues, and the invasion of privacy inherent in ride-alongs might prove offensive to some.

In addition, some justices will want the police to offer a law-enforcement justification for allowing media to accompany them, something more than just an interest in publicity.

“The Fourth Amendment was never intended to convert search warrants into photo opportunities for the police,” says the American Civil Liberties Union, which is helping the search warrant targets in the Maryland case. The Supreme Court does not always heed the ACLU, but on this point some justices might agree.

Law enforcement officials in fact do offer justifications for the media ride-alongs: that they can add to the deterrent value of arrests by discouraging others from committing the same crimes, and that they serve as a check on police abuses. Whether those justifications are compelling enough to convince the court is uncertain.

But for now, media advocates seem fairly upbeat about the meaning of the court’s action yesterday, suggesting that its focus on the police rather than on the media in the ride-along cases bodes well.

“We are pleased the court has decided to take these cases,” said Kathleen Kirby, lawyer for Radio-TV News Directors Association. But she agrees there is always some concern when the court takes such cases. If the court rules against the police, thereby discouraging ride-alongs, she fears, “there will be a chill on media access to government law enforcement.” She says that over the years, ride-alongs have produced “important reporting as well as colorful reporting.”

Arguments in the cases, which were consolidated by the court, will likely occur early next year.