Most Supreme Court cases raise hard issues. A few deal with easy ones. Two such cases provide the backdrop for the May 24 decision holding–with a unanimity that is rare in Fourth Amendment cases–that the Constitution bars police from taking news reporters and photographers into homes without the residents’ consent.
The ruling was a welcome vindication of what Chief Justice William H. Rehnquist called ”the right of residential privacy at the core of the Fourth Amendment.” So why had 24 of the nation’s leading news-and-entertainment organizations urged the Justices to rule the other way–to bless media invasions of privacy piggybacked on police raids?
Why had they suggested in a friend-of-the-court brief that journalists should be able to violate the sanctity of your home–perhaps even to come peering into your bedroom–just about any time the constabulary opts for publicity while executing a search or arrest warrant?
Why, for that matter, had some of the same news organizations filed another brief, in March 1998, urging the Justices to uphold the claim of Paladin Press–publisher of a murder manual titled Hit Man: A Technical Manual for Independent Contractors–to First Amendment immunity from liability to the families of three victims of a contract killer who had meticulously followed the book’s instructions?
Paladin settled the case on May 21 for an unspecified sum in the millions, spurred in part by a Michigan jury’s $ 25 million verdict on May 7 against Warner Bros.’ The Jenny Jones Show. That award resulted from a lawsuit by the family of a gay man who was shot to death after a prearranged, surprise announcement during a taping that he had a crush on another male guest.
All in all, it’s been a tough month in court both for the schlock entertainment media and for the respectable news organizations that often march under the same First Amendment banner. Many of those establishment news companies, it should be noted, also report to the same corporate managers as the schlockmeisters, at such news-entertainment conglomerates as the television networks and Time Warner Inc. These info-entertainment businesses profit from the circus-ification of almost everything–to the revulsion of jurors, judges, and the general public.
It may seem unfair, of course, to lump all media organizations together in assigning blame for the excesses of some. But the media giants invite such treatment when they too readily rush to defend destructive conduct by invoking the public’s right to know.
Mainstream news organizations should defend the rights of those who engage in unpopular or even offensive speech, and rally against censorship–including the de facto censorship inherent in huge, unwarranted jury awards–that could crimp the First Amendment freedoms of us all. But the imposition of liability for deliberately facilitating murder (as in the Hit Man case) is not what I’d call censorship. And barring journalistic invasions of the privacy of the home is not censorship by any definition. The more the media fixate on their own parochial legal and commercial interests in such cases, the more they undercut their claims to be guardians of the public interest.
And undercutting their own credibility is, in my view, exactly what the two dozen media groups–including the major TV networks, The New York Times, The Washington Post, and the American Society of Newspaper Editors–did when they urged the Justices to rule that police should be free to let friendly reporters (and even more invasively, photographers) ”ride along” to the point of joining officers who burst into people’s homes to search or arrest them.
In Wilson vs. Layne, Charles and Geraldine Wilson of Rockville, Md., were rousted out of bed at 6:45 a.m. by the sound of pounding on their door. Wilson was in his undershorts, his wife in her sheer nightgown, when he was met in his living room by three plainclothes officers with guns drawn. The officers were accompanied by a Washington Post reporter and photographer. The latter snapped pictures, including one of the half-naked Wilson with a gun to his head and an officer’s knee on his back.
The officers had a warrant to arrest the Wilsons’ adult son, Dominic, a fugitive who did not live there. The parents, who were never charged with any offense, sued the officers for bringing the reporter and photographer into their home, in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures.
In the companion case, Hanlon vs. Berger, a CNN crew had accompanied some 20 federal wildlife agents when they searched an elderly couple’s ranch in Montana. The wildlife agents had a warrant authorizing them–but not CNN–to look for evidence that eagles were being illegally killed there. After CNN aired footage from the search in a broadcast implying that Paul Berger (the 71- year-old rancher) had killed hundreds of eagles, the Bergers sued both the officers and CNN.
In their friend-of-the-court brief, the 24 media companies joined the officers and CNN in defending the constitutionality of both searches. The media lords argued that ”the incremental diminution of privacy that may result from the news media’s presence at a warrant’s execution” is a reasonable price to pay for informing (not to mention entertaining) the public by showing what happens when cops burst into homes.
The Justices were deeply unimpressed with such logic. Rehnquist wrote for the court: ”The reporters . . . were not present for any reason related to the justification for police entry into the (Wilsons’) home–the apprehension of Dominic Wilson. . . . Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home.”
The public does not (I would add) have a right to know everything. And the press has ”no special privilege to invade the rights and liberties of others,” as the Supreme Court said 62 years ago in Associated Press vs. NLRB. Nothing in the First Amendment authorizes us to bug grand jury rooms or break into the Pentagon to steal classified documents. And nothing in it can justify a journalistic invasion of the privacy of a home, under police auspices or otherwise.
The media groups’ argument that letting reporters accompany police into private homes would help the ”press and public monitor . . . abuses of (police) power” was especially, and embarrassingly, lame. Police who invite reporters to ride along are expecting good publicity, not skeptical ”monitoring.” And good publicity is what they get. Reporters see only what their police sponsors want them to see; such cozy ride-alongs almost never produce exposes of police misconduct. Indeed, it seems more likely that the presence of reporters may spur police to ”pour on the swagger” (as the Wilsons’ counsel argued), or to reach for the most serious possible charge against the target of the operation, to make for a bigger story.
”Media Ride-Alongs,” a booklet distributed to members of the U.S. Marshals Service, captures the essence of such joint ventures when it advises: ”Remember, the media will want good action footage, not just a mop-up scene.” Tabloid TV, in other words. And the cops’ role in this is not to expose their own abuses, but to get ”the best media exposure possible” (in the words of the booklet) by helping the trash-boys make product.
The Supreme Court’s decisions provide no immediate relief to the Wilsons: The Justices dismissed their lawsuit on the ground that before then, the unconstitutionality of officers’ taking reporters along when raiding private homes had not been clearly enough established to overcome the individual officers’ ”qualified immunity.” The Wilsons may have better luck seeking compensation from the federal government, in a separate lawsuit pending in lower court.
The Supreme Court’s holding will presumably put an end to the practice of taking reporters into homes, although police will remain free to let reporters accompany them in public spaces. Still pending is a separate petition by CNN asking the Justices to review an appellate decision that the network can be sued for its role in the raid on the Montana ranch.
Meanwhile, the descent into the muck continues, judging from the advent of Cheaters TV. This latest low was described in a May 24 Washington Post report as ”a new program headed for syndication in which private eyes work with people who suspect their spouses are fooling around, setting the stage for a televised ‘bust’ when the amorous party is caught at a clandestine rendezvous.”
Let’s hope that none of the amorous parties kills anyone. And that if one of them does, the inevitable lawsuits won’t turn Cheaters TV into the next First Amendment cause celebre.