News media participation in law enforcement activities

FBI Law Enforcement Bulletin,The, August, 1994 by Kimberly A. Crawford

"Unbidden guests are often welcomest when they are gone."

William Shakespeare Henry VI, Act 2, Scene 2

Historically, the relationship between law enforcement and the news media has been fraught with conflict. Law enforcement agencies, in their efforts to safely and effectively investigate and prosecute violations of criminal laws, often have sought to preclude the news media from interfering in their endeavors. On the other hand, the news media, performing the valuable function of keeping the public informed, has waived the first amendment banner, claiming a newsgathering privilege.

This conflict culminated in a series of three Supreme Court decisions that defined the parameters of the first amendment's newsgathering privilege.(1) Essentially, the Supreme Court held that the constitutional right of the media to access the news is no greater than that of the general public and that law enforcement can prevent the media from obtaining access to information or areas generally not available to the public.(2) However, once the media acquires the information, the constitutional right to publish is virtually insurmountable,(3) and any attempt by law enforcement to prevent dissemination will be presumed invalid.(4)

The practical result of these Supreme Court decisions is that they have created a strong incentive for law enforcement and the news media to resolve their conflicts and to work together in a spirit of cooperation. The media depend on law enforcement for access to news that is unavailable to the general public, and law enforcement relies on the media to responsibly report the news in a manner that will not jeopardize law enforcement activities.

The new, cooperative relationship that has developed between law enforcement and the media is epitomized in the very popular "docudramas" that appear almost nightly on prime-time television. Camera crews accompanying law enforcement officers on assignments bring raids, searches, seizures, and arrests into viewers' homes. Although beneficial from a public relations standpoint, the cooperative effort required to produce this type of program is not without constitutional impediment.

The constitutional issues that arise when the news media participate in law enforcement activities were the focus of a Federal district court's opinion in the case of United States v. Sanusi.(5) This article examines these issues as they relate to law enforcement and makes policy recommendations to accommodate the resulting constitutional concerns.

UNITED STATES v. SANUSI

In Sanusi, nine defendants, including Babatunde Ayeni, were charged with credit card fraud. In preparation of his defense, Ayeni subpoenaed a CBS News videotape taken during the search of his apartment. The search, which was conducted pursuant to a warrant, was filmed by a CBS crew on the scene at the invitation of the U.S. Secret Service.

Contending a newsgathering privilege, CBS refused to turn over the videotape and moved to quash the subpoena. After careful consideration, the court denied CBS's motion and held that an edited version of the tape, which obscured the identity of a confidential source, had to be turned over to the defense.

In reaching its conclusion, the court identified and analyzed both first and fourth amendment issues. While the fourth amendment issues are of primary concern to law enforcement, the practical impact of the first amendment issues are of sufficient importance to warrant discussion.

FIRST AMENDMENT ISSUES

CBS's motion to quash the subpoena was based on the argument that the first amendment newsgathering privilege protects the media from the type of compelled disclosure sought by the defense. When considering this argument, the court reviewed the previously mentioned Supreme Court decisions and recognized the existence of a qualified newsgathering privilege. However, because this privilege is not absolute, the court found that it can be overcome by a showing that the information sought is 1) highly material and relevant, 2) necessary or critical to the maintenance of a claim, and 3) not obtainable from other sources. Furthermore, the court pointed out that the newsgathering privilege does not shield the media from ordinary legal constraints and that members of the media could be liable for criminal or tortious trespass committed while in pursuit of the news. Finding that the defense met the three-part test establishing its interest in acquiring the videotape as superior to that of CBS News, and that the camera crew trespassed on defendant's property, the court held that CBS was required to comply with the subpoena.

The first amendment analysis by the court in Sanusi is of obvious importance to the media. However, the practical result of that analysis is of particular importance to law enforcement.

Following its determination that the newsgathering privilege did not protect CBS from compelled disclosure, the court reviewed the videotape in question and determined nothing on that tape would support the defendant's motion for suppression. However, the court ruled that the tape could be critical to the defendant's case at trial because it demonstrated that an exhaustive search of defendant's apartment failed to reveal any evidence of credit card fraud.