Reporting on a raid: Permission slips now required
Supreme Court says media must get homeowner's OK when entering
BOSTON — "Bad boys, bad boys. Whatcha gonna do? Whatcha gonna do when they come for you?"
These are the words to the opening theme song of the popular television police program "COPS." Basically, the show involves a camera crew following real life police officers as they seek out and subdue alleged "bad boys" across back alleys, and sometimes directly into their living rooms.
Not anymore - at least not without permission from the homeowner.
On Monday, all nine justices of the US Supreme Court put the nation's law-enforcement officers on notice that if they take the news media into a private home to be present at an arrest or search, the officers could be held personally liable for violating the privacy of the homeowner.
"We hold that 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," wrote Chief Justice William Rehnquist. In effect, the court ruled that the Fourth Amendment right to privacy within one's home outweighs any First Amendment rights the news media have to gather information about the activities of police during a raid.
The decision deals with so-called media ride-alongs, when reporters literally ride in the back seat of a squad car and follow the officers through their daily routine. "COPS" is perhaps the best-known example of the genre, but virtually every news organization has engaged in some form of the technique - particularly local TV stations seeking dramatic crime video.
Curbing practice of ride-alongs
The ruling isn't expected to end ride-alongs in public places and on city streets, but it will curb the practice of the media accompanying law enforcement on raids of private homes. One exception will be when the media is able to obtain permission from the homeowner, an unlikely prospect in most police raids. "As far as media ride-alongs, they have come to a screeching halt - at least in the home," says Edwin Butterfoss, dean of the Hamline University School of Law in St. Paul, Minn.
Privacy advocates are hailing the ruling as a surprising victory from a court that has been less than enthusiastic in its defense of the Fourth Amendment. "It is more of an endorsement of the right to privacy than I would have expected from this court," says Robert Ellis Smith, editor of Privacy Journal in Providence, R.I.
Media analysts see the decision as erecting a new obstacle to the traditional role of journalists as watchdogs fighting to expose police misconduct and abuses.
"One of the practical outcomes of this decision is that law-enforcement officers will be unlikely to take reporters along with them when they execute warrants in homes, and that will undercut the public's ability to monitor this activity," says Jay Brown, who specializes in media law.
"In some cases where there is wrongdoing or a violation of a citizen's legal or civil rights, journalists who are on the scene can blow the whistle on the wrongdoing. That will be tougher now, but not impossible," says Bob Steele of the Poynter Institute for Media Studies in St. Petersburg, Fla. This decision "will require news organizations to be more thoughtful, more creative, and more responsible in seeking meaningful information."
Other analysts counter that the media frequently overstep their authority and the ruling is helping to bring reporters and camera crews back in line with the expectations of many citizens. "This is an area where there has been some public concern," says Mr. Butterfoss. "The public doesn't like situations where the media has been invading somebody's privacy."
The ruling involves two cases in which law-enforcement personnel invited the news media to ride along with them as they executed court-authorized warrants.
In one case in Maryland, federal marshals brought a Washington Post reporter and photographer into a private home as they searched for an alleged violent fugitive. The fugitive was not in the house, but the photographer snapped a picture of the innocent homeowner being subdued on his living room floor in his underwear with a gun aimed at his head. The Post never published the photo or a story, but the homeowner sued the federal officials for inviting the media into his house without first obtaining his permission.
In the second case, federal agents with the US Fish and Wildlife Service invited a camera crew from CNN to film agents searching a ranch in Montana. The owner of the ranch was suspected of poisoning endangered eagles, but was later acquitted of the charges. He sued the agents and CNN for violating his privacy rights.
Law not clearly established
The Supreme Court ruled in both cases that the agents had violated the homeowners' privacy. But eight of the nine justices declined to hold the agents liable for the violations because, they say, the state of the law was not clearly established enough to provide federal agents with fair warning.
Justice John Paul Stevens dissented on this part of the decision, saying the agents were well aware of the Fourth Amendment protections and should face suit as punishment for their violations: "In shielding this conduct as if it implicated only the unsettled margins of our jurisprudence, the court today authorizes one free violation of the well-established rule it reaffirms."