While the First Amendment protects your right to engage in speech, it does not grant you complete access to the property of others. Here are some guidelines to protect yourself from legal risks.
- Get consent. If you have any doubts about your right to enter property, get consent to enter first.
- Don’t assume permission. Make sure your use of the property is consistent with your right to be there. If you are invited onto someone’s porch for an interview, do not assume that you can access other areas where you were not specifically invited.
- Don’t misrepresent yourself. If you feel that it is necessary to assume another persona to gain access to public or private property, get legal assistance to find out how best to proceed.
- Get a press pass. Depending on the event, the property owner or agency may have a process for getting a pass. Sometimes, organizations require proof that you are a journalist, but in some cases you can simply assert that there is a public interest in publishing information from the forum or event.
- Don’t interfere. Even if you’re on public property, you may face charges of harassment or assault if you interfere with people. If you are covering a breaking event, cooperate with authorities, police and emergency personnel to be sure that you are not interfering with rescue or other emergency efforts.
- Be cautious with special equipment. You may be liable for intrusion if you use advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that you could not have gotten otherwise.
- Get consent to record. Where possible, get consent from the people you record. Consent can often be granted expressly, by someone specifically telling you that you can photograph them (which you should get in writing), but it can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent.
- Don’t use concealed equipment. Avoid concealed cameras or microphones unless you have obtained legal advice in advance. Even if your subject consents or you are invited into their home, you could still face liability if you use a concealed camera or recording device. Courts have sometimes held that the person’s consent only extends to the face-to-face interview and not to any concealed recording.
- Be careful when you’re reporting. Remember that legal liability can arise simply on the act of newsgathering. It is not necessary for you to publish what you gather to be liable.
Taken from Newsgathering Law & Liability: A Guide for Reporting, a self-directed course by David Ardia and Geanne Belton at Poynter NewsU.
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