Trespass
Dozens of reporters have themselves been arrested in recent years for following protesters over private property lines to document their action and the subsequent arrests. Several reporters, including Amy Goodman, were arrested and charged not only with trespass but also criminal conspiracy, while covering the fall 2016 Standing Rock Sioux pipeline protests. Goodman’s charges were dropped, but charges against other journalists remain.
Similar charges of trespass have been filed in Canada over news coverage of Native American protests at Muskrat Falls, Newfoundland.
A Reporter’s Committee for Freedom of the Press web site shows many incidents of trespass charges, many of which were dropped once reporters were jailed and out of the way.
RCFP’s guidelines on trespass are here:
Whereas intrusion usually involves an electronic or mechanical invasion into the private affairs of another, trespass requires a physical invasion of someone’s property. As with intrusion, the violation arises from the act of unauthorized entry, not from the publication of information obtained there.
Those who gather and disseminate information to the public do not have a privilege to trespass. The Supreme Court has consistently ruled that the First Amendment does not protect journalists from laws of “general applicability” that don’t specifically target the press, including trespass laws.
Read the Reporter’s Field Guide for more details about specific types of properties and trespass rules.
Newsroom searches
* Zurcher v. Stanford Daily, 1976 — newsroom searches were not illegal according to the courts; In 1980, Congress passed the Privacy Protection Act and overruled the Zurcher decision. Under the law, subpoenas are preferred to ex parte proceedings such as search warrant requests, which only be issued:
- when the person holding the information is suspected of a crime and
- there is reason to believe the materials must be seized immediately to prevent death or injury and
- there is reason to believe that giving notice would result in materials being changed or hidden or destroyed and
- the materials were not produced as a result of a court order.
In April, 2010, a newsroom search in Harrisonburg, Va, on the campus of James Madison University, was greeted with outrage by media watchdogs and the press.
State courts have recognized that newspapers may withhold materials from the government unless officials make a compelling case to the contrary, a process that is supposed to play out in court in response to a subpoena. In this case there was no subpoena, no court arguments and no recognition that raiding a newspaper makes a mockery of the First Amendment.” said a Washington Post editorial.
In June, 2011, the Commonwealth Attorney apologized and paid $10,000 to cover the legal costs of the JMU student newspaper.