Access to Places and Information: What You Can Get From Government, It Can Probably Get From You
The right to speak and publish does not carry with it the unrestrained right to gather information.
—Justice Earl Warren1
The First Amendment has been consistently interpreted to mean that although there is a fundamental freedom to communicate and publish information after it is obtained, there is no right of access by the public or press to information. Therefore, the First Amendment cannot be used as a lever to force disclosure of information, no matter how newsworthy it may seem, from any source, private or public.
This chapter discusses many of the problems faced by mass communications professionals who seek to gather information from private and public sources. It also explains obligations mass communications practitioners have to provide information in response to court orders.
The first section deals with media access to private property or information. In a much longer second section, we address problems associated with obtaining access to governmental facilities, government decision-making processes, and government records. We include a description of a series of Supreme Court cases dealing with the issues of government ownership and management of its own property. Next, we summarize the federal Sunshine Law and similar open meeting laws enacted by the states. Then we turn to the topic of access to government information and records, including the Freedom of Information Act (FOIA) and similar state access statutes. The clash of interests inherent when government agencies must collect private information about individuals in order to perform its various functions is described when the Privacy Act of 1974 is introduced and juxtaposed against the FOIA.
We then begin our explanation of how government may force information disclosure from media with the definition and analysis of seven terms and concepts. These terms and concepts are privilege, immunity, “shield law,” defense and affirmative defense, exemption, exception, and protection. This terminology is important to understand the remainder of this chapter and subsequent chapters. In the next section, we describe the problems faced by reporters when government officials and others seek information from the media through the use of subpoena powers.
The final part of the chapter includes several practice notes that focus on how to avoid and deal with subpoenas.
Access to Private Property
This chapter concerns the clash of many competing interests. One of the major freedoms inherent in the American form of government is the right of privacy. The rights of citizens to be let alone by government and not to have others intrude into their private lives, businesses, and affairs is implicit in both the Fourth and Ninth Amendments. Yet, when some common disaster befalls any person or group, curious members of the public as well as the media descend in great numbers to view and report on the horrors that can suddenly happen to anyone at any time. Whether compelled by a sense of compassion or morbid curiosity, the public and press want to see what has occurred. Another set of competing interests comes into play when a newsworthy event occurs on private land whose owner wishes to occupy and enjoy her or his property free from public intrusion. This competition of interests is exacerbated because the public and the press seem to believe they have a right to go onto or across private property in order to gain access to the scene of a newsworthy event.
It is incumbent on all who work in mass communications to understand and respect the right of citizens to enjoy their privacy and their private property. The U.S. Supreme Court has repeatedly said that the First Amendment does not guarantee any right to media personnel that is different than that of the general public.2 The general public does not have a right of access to private property; ergo, neither do members of the media. Responding to an argument that denying media access to private property would restrict the free flow of information, Justice Warren wrote,
There are few restrictions on action that could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen’s opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right.3
Justice Warren also explained that private property owners may deny access to their land and the government may limit travel to protect safety; the First Amendment has nothing to do with such situations.4
Public access to private property, in most jurisdictions in the United States, is still controlled by the application of common law principles. The modern communication torts are covered in chapter 9. However, many of those laws are expansions and extensions of the tort of trespass so it is important to understand the concept. It is also important to understand that the laws regarding trespass are applicable to reporters and their agents who go on private property to gain access to newsworthy events.
The simple, common law definition of trespass to private property or land is the intentional, unauthorized entry on property rightfully possessed by another.5 Each state jurisdiction has its specific definition of trespass from either common law interpretations or statute. But most have only two fundamental requirements, which are “a rightful possession in the plaintiff and unlawful entry upon such possession by the defendant.”6 Under these laws, anyone, including members of both the public and media, can be sued for the civil tort of trespass to property, or prosecuted under the criminal statutes of any state, or both. “The First Amendment does not insulate a person from liability for unlawful trespass.”7 The elements of trespass are summarized in Exhibit 6.1.
Exhibit 6.1. Elements and Defenses for Trespass.
May include accidental entry if defendant staysm beyond notice or reasonable realization that he or she has entered property of another.
Without express or implied consent. See defenses below.
Entry on Property
Simply means crossing the boundary of another’s land or property. May inc!ude entry by misrepresentation.
Possessed by another
Rental property or loaned property is included. May specifically include hotel rooms and rented conference rooms.
Specific permission to enter from the person in rightful possession of the property. Note a land owner may not give permission to enter property he or she has rented to another.
Permission to enter is implied by the common use of the property. Usually applies to retail businesses. Does not include permission to enter non-public areas and areas posted as non-public.
May be revoked with notice or for: Activities not normally part of implied consent Staying beyond normal hours of invitation.
The most common defense to either civil or criminal liability for trespass to real property is consent. If, prior to the entry onto land owned or occupied by another, an individual obtains consent of the property owner, this permission to enter constitutes a complete defense to the tort or crime of trespass. There are two recognized types of consent: express and implied. Express consent results from invitation by the landowner or person occupying the land or by specific authorization by these individuals to be on the property. Implied consent is a bit more complex, and includes the concept or “doctrine of custom and usage.” Implied consent generally applies to situations wherein the public is invited onto property for the purpose of conducting business or for some specific reason intended by the property owner. Implied consent would extend to those areas, days of the week, and times of day that are covered by signs on the premises or by the pattern of use permitted by property owners in similar situations. If an individual goes beyond the scope of the implied consent given, he or she is trespassing.8 Trespassing in an implied consent situation results from (a) entering into areas specifically marked “private,” “employees only,” or “no admittance beyond this point”; (b) wandering into clearly non-public rooms or spaces on the premises; (c) staying beyond the hours posted for invitees; (d) engaging in activities inconsistent with those of normal invitees; and (e) staying on after specific notice to leave. Effective notice to leave may be oral or posted by sign.
“Wrongful conduct following an authorized entry upon land can result in trespass.”9 Even if one has been given express consent, this is revoked by any behavior that goes beyond the scope of consent. Further, express consent can be revoked by overstay (a) the period given, (b) failing to leave after notice, (c) entering an unauthorized area or, (d) engaging in activities inconsistent with the express consent. Specifically, secret videotaping or other covert behaviors involving subterfuge or snooping are trespass in most jurisdictions. In some jurisdictions, obtaining entry by misrepresentation is trespass and can negate any express or implied consent. In other jurisdictions it does not, but any conduct beyond what is implied by the consent, such as secret photography, filming or taping of activities, will subject an individual to charges of trespass.10 “The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.”11
In addition, no one may assume that just because consent has been given to one person, that consent extends to others. Specifically, media that have been invited to ride with police, firemen, or other emergency personnel may not accompany them onto private property without the property owner’s permission.12 Even though law enforcement or emergency personnel have given their consent to ride along and film their activities and private parties give implied or specific permission for the police to enter their homes, this permission does not extend to the media. Media personnel can be, and have been, sued by these private property owners for trespass as well as for invasion of privacy, which is discussed more fully in chapter 9.
Even on public land, access may be legally denied. When newsworthy events occur on public property, such as highways, schools, or government buildings, law enforcement authorities may govern access. Often, such areas will be closed in the interest of public safety, for the purposes of search and rescue operations, or to preserve evidence. Access in these situations often may only be had from a legal vantage point on the ground or in the air. The reporter must always obtain private landowner or occupant permission, regardless of why he or she seeks entry to private land. Emergency personnel are charged with granting or denying access to public property, and can arrest noncompliant reporters or any nonessential members of the public for any number of crimes. The laws of most jurisdictions do not have exceptions for media access independent of public access. Some law enforcement authorities do have agreements with members of the media to whom they issue courtesy press passes. However, these agreements are discretionary; there is no legal obligation to issue or to recognize a press pass.
Those who go into crime scenes or disaster areas without express permission of law enforcement personnel may be arrested for criminal trespass, disobeying a police officer, interference with police investigation, interference with rescue operations, or obstruction of justice. In short, media representatives have no greater right of access to private property or accident scenes than do any other citizens. Permission and good relations with emergency personnel are a reporter’s only protection.
Access to Government Property
In chapter 1, we defined the concepts of power, authority, and sovereignty. Sovereignty refers to one who is or who holds the ultimate supreme power in a state. Both the federal government and the 50 state governments are sovereigns. As sovereigns, our various governmental jurisdictions have sole ownership, control, possession, and exclusive management rights to the property owned by them. This is true even though such property is simultaneously said to belong to The People, whose tax monies purchased and maintain it. Merely because government property has a public purpose or use does not mean that the whole or any part is open to the public or media. Public and media access to government property is determined by the sovereign government based on whatever use best serves the property’s purpose and meets the standards of public safety, national security, or state police power interests. The laws of both civil and criminal trespass to government lands or chattels apply to the public and media personnel alike. If members of the public or press trespass on government property, they have violated the government’s proprietary interest and government policy and thus open themselves to prosecution. “Governmental entities are empowered to regulate property under their control in order to preserve the property for the use to which it is lawfully dedicated.”13 “The First Amendment does not shield newspersons from liability for torts and crimes committed in the course of news-gathering.”14 “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”15
The Supreme Court’s ruling that there is no First Amendment right of access to government places or information does not conflict with the fact that the High Court has also fairly consistently held, at least in the past 50 years, that once the media have gathered information, the Constitution, with few exceptions, prohibits prior restraint of publication by the government. Therefore, it is very important for mass communications practitioners to be aware continually of the legal distinction between the First Amendment freedom of the press, which is a freedom to publish, and the ability of the press and public to gather, obtain, or acquire information, which is not guaranteed by the First Amendment. As seen in chapters 3 and 4, “freedom of the press” has been interpreted to include the right to publish legally obtained, non-obscene, non-defamatory, non-inciteful material without governmental restraint. Even illegally obtained material or material that falls into the unprotected areas of non-speech can be published with recognition and acceptance of the consequences, such as criminal and civil liability. “The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish.”16
Competing Interests and Examples
Numerous cases have been brought to court because the public and media have sought access to government-owned and controlled places. These cases emphasize the clash of interests between the governmental entity, the interests of the people being served by the facilities, the business interests of the media attempting to gain access, and the more generalized interests of the public.
Cases that involve attempts by the media to gain access to government-owned and operated facilities usually arise when media access has been thwarted by a statute, rule, or regulation and/or by the specific application of a statute, rule, or regulation by some public official. Sometimes, the media actually interpose public interests as part of their arguments for access, at other times the public has actually pushed for regulations confining the media to certain locations or parameters of operation. Cases involving access to polling places by the media to conduct “exit polls” offer pertinent examples.
The 1988 case of Daily Herald Co. v. Munro17 involved media plaintiffs who were challenging a Washington State statute that prohibited exit polling within 300 feet of a polling place. The law was amended in 1983 from an older law that prohibited exit polling within 100 feet. While recognizing the compelling interests of the people and states in “maintaining peace, order, and decorum at the polls and in preserving the integrity of their electoral processes,” the Court of Appeals found that polling places were traditional public fora and the regulation of speech covered was content-based because it involved the discussion of voting.18 The court then applied the strict scrutiny standard of review to the state statute and said, “(a) content-based statute that regulates in a public forum is constitutional only if it is narrowly tailored to accomplish a compelling government interest.”19 After finding the statute was “content-based, overbroad, and not the least restrictive means of advancing the state’s legitimate interest of keeping peace, order, and decorum at the polls” and that there were “no alternative channels of communication [existing]& to gather the type of information obtained through exit polling,” the court ruled the statute “unconstitutional on its face.”20
A similar case involved a Georgia statute, which made it a misdemeanor punishable by imprisonment of up to 1 year or a fine of up to $ 1,000 or both for any person to “conduct any exit poll or public opinion poll with voters on any primary or election day within 250 feet of any polling place.” The federal District Court permanently enjoined the operation of the statute beyond 25 feet of the exit of any building in which a “polling place” is located. In this case, the statute had been enacted in reaction to voter complaints after the 1984 national election.21
In still another case, the U.S. Supreme Court upheld the constitutionality of a Tennessee statute involving a 100-foot “campaign-free” zone from the entrance to polling places. In that case, the High Court said,
(W)e reaffirm that it is the rare case in which we have held that a law survives strict scrutiny . . . . Here, the State, as recognized administrator for elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. . . . we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise.22
In summary, it appears laws forcing exit pollsters to remain 250 to 300 feet from the polls cannot survive constitutional challenge while prohibitions forcing those soliciting votes to remain at least 100 feet from the polls are constitutional.
Jails, Prisons, and Inmates
Cases involving public and media access to jails, prisons, or prisoners for the purposes of observing and reporting on prison conditions and the treatment of inmates as well as interviewing specifically named prisoners all produce the same conclusion. Prisoners have no specific First or Fourteenth Amendment rights that are violated by procedures confining them to communications with their family, friends, ministers, and legal counsel. Any right of access by the public and media can be limited to public tours of the facilities and visits subject to strict restrictions imposed for institutional safety. The media, depending on the jurisdiction, may also be allowed to speak with randomly selected inmates as they tour the facilities. However, the media have no greater right of access to prisons or prisoners than does the general public; neither the public nor the media have any specific First or Fourteenth Amendment right of access to specifically named inmates for interviews.23 Statements of legal authority supporting state and prison regulations prohibiting face-to-face interviews with specifically designated inmates, made by the U.S. Supreme Court, include the following:
It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. . . Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.24
Governmental control of access to military facilities via the authority vested in base commanders is absolute, regardless of whether or not these regulations might arguably violate First and Fourteenth Amendment rights. Three cases serve as examples.
Cafeteria & Restaurant Workers Union v. McElroy25 involved a female employee who worked as a short-order cook for a food services contractor at the Naval gun factory in Washington, DC. Her security clearance was cancelled, her identification badge was confiscated, and she was refused further admission to the base. Therefore, she could not perform her job. The commander of the installation denied her request for a hearing or even to explain the reason why she had failed to meet security requirements. Her union filed suit, on her behalf, in U.S. District Court, based on the alleged denial of her Fifth Amendment right to due process. The complaint was dismissed and this decision was affirmed through the U.S. Supreme Court. The two issues the Supreme Court addressed were (a) was the commanding officer of the gun factory authorized to deny the woman’s access to the gun factory in the way he did? and (b) did his action in excluding her deprive her of any right derived from the Constitution?26 The Supreme Court ruled the commander was authorized to deny access and that the petitioner was not deprived of any constitutional rights. The Court’s legal analysis is instructive because it typifies the reasoning involved in all military installation access cases.
The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President. . . The power of a military commandant over a reservation is necessarily extensive and practically exclusive, forbidding entrance and controlling residence as the public interest may demand. It is well settled that a post commander can, in his discretion, exclude all persons other than those belonging to his post from post and reservation grounds. . . [He may] in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline.27
Greer v. Spock involved several individuals seeking access to a U.S. Army post for political campaigning. This suit involved two separate interest groups. The first group all claimed to be candidates for national political office who had been denied permission to enter Fort Dix, New Jersey, to distribute campaign literature and discuss political issues with Army personnel. The second group had been evicted from the post on a number of occasions for distributing political literature. Both groups filed suit in U.S. District Court. They sought an injunction against the enforcement of post regulations based on an asserted violation of their First and Fifth Amendment rights.28 The U.S. Supreme Court granted certiorari to review the case after the District Court had denied a preliminary injunction and the Court of Appeals reversed and prohibited the military authorities from interfering with po!itical speech and leafleting in the areas of Fort Dix that were open to the general public. The Supreme Court reversed this decision and confirmed its opinion that the rules and regulations issued and enforced by base commanders cannot be challenged under the First Amendment. The Court reasoned:
The guarantees of the First Amendment have never meant that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. . . A necessary concomitant of the basic function of a military installation has been the historically unquestioned power of [its] commanding officer summarily to exclude civilians from the area of his command.29
Finally, the Supreme Court listed a number of federal statutes and regulations that prohibit the military from engaging in political activities or appearing to influence the political lives of service men and women. According to the Supreme Court, the purpose of these statutes is to “insulate [the military]. . . . from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.”30
JB Pictures, Inc. v. D.O.D. also addresses public and media access to military facilities.31 This case also exemplifies problems created by conflicting interests when a government policy is chosen with the specific concerns of a small group of the public in mind rather than the interests of the U.S. people as a whole.
JB Pictures involved a change in Department of Defense (DOD) policy that moved the site of arrival for soldiers killed abroad and any ceremonies or services connected therewith to sites near the families of the deceased. This policy also provided the families with veto power over press coverage of these events. The point of entry for deceased soldiers beginning in 1983 was Dover Air Force Base, Delaware. Dover was the site of the only mortuary jointly operated by the military services.32 In 1991, in connection with Operation Desert Storm, military policy for the return of war dead was significantly changed. The DOD stopped ceremonies or services at Dover and held them at the deceased service member’s home duty station. This new policy also permitted media coverage only “if the family so desires.”33
The DOD explained its new policy saying it was trying to reduce the hardship on the bereaved, who might otherwise have felt obliged to travel to Dover for the arrival ceremonies.34 Media representatives were not permitted to view the arrival of war dead and concomitant ceremonies but the policies allowing civilian access to other activities on the base, including departure activities for outgoing military personnel and supplies to the Persian Gulf remained in place.
A disgruntled group including the plaintiff media organization, several other media groups, and individual reporters, as well as veterans’ organizations, challenged the new Dover access policy in the U.S. District Court for the District of Columbia. The suit was based on the First Amendment but took the unusual approach of claiming that the new DOD policy constituted impermissible “viewpoint discrimination.”35 The viewpoint discrimination argument was predicated on the idea that allowing the media and public access to view and gather information about outgoing troops supplies and activities led to the transmission of a substantially different message than the message produced by viewing images of caskets of deceased soldiers. The former purportedly carried an implicit pro-war attitude and the latter an implied anti-war viewpoint.36
The district court dismissed the complaint, finding no First Amendment violation. On appeal, the U.S. Court of Appeals for the District of Columbia affirmed the decision of the lower court. The appellate court applied a balancing test, which considered the competing interests supported by the new government policy and those allegedly disadvantaged by the denial of access. The court categorically rejected the viewpoint discrimination argument. In its reasoning, the court noted that the DOD policy applied to all members of the media and public regardless of their views on the war or the U.S. military. The court also said that viewpoint discrimination could be claimed in virtually any situation restricting access to government facilities and that accepting the argument would require public access to all venues and events absent a special government justification. The tradition of limited access to military bases was also noted, as was the fact that the policy did not impede newsgathering because other sources of information remained available. Finally, the court noted that the governmental interest in protecting grieving families was consistent with limiting press access to funeral services and that the press had only a right of speech, not a right of access.37
The Circuit Court then concluded with its holding and judgment: Because the access policy at Dover does not violate the First Amendment’s guarantees of freedom of speech and of the press, and because the complaint does not embrace a claim based on the right to engage in on-base speech, the judgment of the district court is Affirmed.38
Access Permitted by Government Must Not Discriminate
As we have seen, the cases dealing with access to military and other governmental facilities are often based on distinctions that require a balancing of competing interests. Also, the interests involved in access to government places, functions, or processes cannot be easily condensed into just those of the government on one side versus the public and press combined on the other side. There are often at least two types of media interests that need to be considered in First Amendment freedom of access cases; there are also at least two forms of public interest involved. Media interests arise from their roles as businesses and as sources of public information. There are also two major categories of publics in access cases: (a) the people, whose powers of self-government require information as the basis for decision making; and (b) the public as a mass audience seeking entertainment.
Most cases dealing with access to governmental facilities lump the competing interests of the public and press together vis-à-vis the interests of the government. The media are viewed as representatives of the people and are allowed no greater access than the public. The Supreme Court, in a simplistic “all for one, and one for all” scheme, views their competing interests as one and the same. The Supreme Court’s mantra comes straight from its decision in Zemel v. Rusk wherein it said: “[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”39
However, the courts have also held that once the government does grant even limited access to its facilities, information, and processes, it may not discriminate based on either the viewpoint of those seeking access or the content of their communication. The First, Fifth, and Fourteenth Amendments require the government to provide or deny access to everyone equally. In its 1972 decision in Police Department of the City of Chicago v. Mosley, the U.S. Supreme Court struck down a city disorderly conduct ordinance that prohibited picketing near schools, except for “the peaceful picketing of any school involved in a labor dispute.”40
Justice Marshall, writing for the Court, expounded on the requirement of equality of access to communications fora, and the concomitant Constitutional limitations on governmental abridgment of First Amendment freedoms of speech and press.
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. . . Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.41
Once it opens its facilities to limited access by the public and press, the government is prohibited from restricting admission on the basis of the content of expressive activity allowed to be conducted therein. In addition, the government, acting through its officials and agents, must also grant equal access to all who fit within the categories of individuals or groups it has admitted to its forum. The district court decision in Borreca v. Fasi serves as an illustration of this principle. In that case, Fasi, the mayor of Honolulu, directed his staff to keep, Borreca, a city hall reporter, out of the mayor’s office. This directive also excluded the reporter from general news conferences given by the mayor on at least four occasions. The mayor also instructed city officials not to talk to the reporter. The mayor objected to Borreca because he thought the reporter was “irresponsible, inaccurate, biased, and malicious in reporting on the mayor and the city administration.”42 In granting the reporter’s request for a preliminary injunction, the district court discussed the requirements of the First Amendment and the equal protection clause of the Fourteenth Amendment:
Requiring a newspaper’s reporter to pass a subjective compatibility-accuracy test as a condition precedent to the right of that reporter to gather news is no different in kind from requiring a newspaper to submit its proposed news stories for editing as a condition precedent to the right of that newspaper to have a reporter cover the news. Each is a form of censorship.43
A third decision describes the equality of access doctrine. Sherrill v. Knight involved a reporter who was denied a White House press pass because of a recommendation by the Secret Service.44 Clearly, the governmental function of protecting the president of the United States is of paramount importance, and seems to fit somewhere between the absolute control of access, which can be exercised by a military base commander as seen in Cafeteria & Restaurant Workers Union v. McElroy,45 and the access to jails and prisons cases illustrated by Pell v. Procunier,46 The problem in the Sherrill case was that there were no published or internal regulations describing the criteria for a White House press pass, there was no procedure for explaining the basis for denial, and there was no opportunity for a reporter to respond or refute a false allegation.
Sherrill had all the prerequisite press pass credentials, including a pass for the House and Senate press galleries and the fact that he had been employed as the Washington correspondent for The Nation since 1965. He resided in the Washington, DC, area and his editor confirmed that he needed to report regularly from the White House. Sherrill was summarily denied a White House press pass and all his attempts to find the reasons for this denial were refused. He even filed a Freedom of Information Act request to which the Secret Service claimed an exemption.
Sherrill filed suit in Federal District Court, basing his complaint on a violation of his First and Fifth Amendment Constitutional rights. Sherrill challenged the system under which his application had been denied, including the lack of procedures for notification, opportunity for rebuttal, and final written summary of the bases for denying the press pass. He did not challenge the authority of the Secret Service to determine clearance, or the decision made to deny him the credential; he challenged the apparent arbitrariness of the decision in his case, compared with the 1,589 other reporters who had been granted press passes. He also challenged the lack of due process involved in the decisionmaking system.
The District Court granted Sherrill two types of relief. First, it required the Secret Service formulate specific standards by which applications are to be judged. Second, it required the creation of procedures for handling requests for press passes.47 However, on appeal by the Secret Service, the Circuit Court determined that the courts should leave the standards by which applications are judged to the Secret Service because of the importance to national security and of the continuing safety of the president. The Circuit Court said the Secret Service is uniquely qualified to make such determinations and reviewing courts should accord them appropriate deference and wide latitude in such matters.48
The appellate court’s reasoning is instructive because it creates case law rules governing access to government facilities. The first of these rules says the government has absolute power to grant or deny access to its places, processes, and information. The second rule says that once the government grants access to a designated location or to a specific group, for expressive behavior, the First, Fifth, and Fourteenth Amendments prohibit the government from arbitrarily denying access to otherwise qualified members of the group. Finally, the government must provide due process to any otherwise qualified member of the group who is denied access.49
Access Granted by Government Neither Prohibits Nor Requires Preferential Treatment
The principles governing access to government property are summarized in Exhibit 6.2. Once access to government facilities or information has been granted, equality of access must be given to all members of the groups that have been admitted. However, the government is not prohibited from granting exclusive access in some situations nor is it required to give preferential treatment to everyone within the category. Although this may appear to violate the requirement for equality of access, some members of the class may receive specialized treatment. Granting preferential treatment to one member of the class does not create a requirement that preferential treatment be accorded to everyone else in the class.
Exhibit 6.2. Access to Government Property.
The government, as a sovereign land owner, has no obligation to provide access to its land, [Green v. Spock, 424 U.S. 823, 836 (1976)] and
The press has no greater right of access to government property than does the general public, [Zemel v. Rusk, 381 U.S. 1,16 (1965)] but
Once some class or group of the public is admitted to any government property, the government may not discriminate against members of that class or group based on their viewpoint or expression while there, [Mosley v. Rusk, 408 U.S. 93, 95–96 (1972)] but
Providing special treatment or access for one person does not create an obligation to provide that same treatment for everyone. [Snyder v. Ringgold, 40 F.Supp 2d 714, 715717 (D. Md. 1999)]
This conceptual distinction is partially illustrated by the appellate court in the Sherrill decision where the court explains a corollary to its equal access doctrine.
The First Amendment’s protection of a citizen’s right to obtain information concerning the way the country is being run does not extend to every conceivable avenue a citizen may wish to employ in pursuing this right. Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.50
The second part of this corollary to the court’s “equal access doctrine” is that granting preferential treatment or exclusive access to one member of the media, does not mean the government must give special, preferential, or exclusive treatment to all reporters. This part of the access to government judicial interpretation scheme is illustrated by the decision in Snyder v. Ringgold. Snyder was a journalist in the Baltimore area who worked in both print and television media. She sued Ringgold, the police public relations officer, for tortious interference with prospective economic relations. Snyder based her claims on the First and Fourteenth Amendments to the U.S. Constitution, as well as the corresponding state constitutional sections and state law. She claimed her right to obtain information had been denied because Ringgold, in his official capacity, had refused to give exclusive access to police investigations and had limited her access to police officials to specific times and places.51 In her complaint, Snyder failed to mention that, from the police perspective, she had been a royal pain and was viewed as a source of harassment. She paged the public relations officers needlessly many times during the weekends when they were off duty for information about police scanner calls and, in violation of confidentiality agreements, she had printed information obtained from police records and investigations.