Sunday, December 30, 2007 Bautista: Media Access to News Source By Jun Bautista Straight Views
(Part 2)
IN MY previous article, a survey of US federal case law has revealed that the media, in the absence of applicable state law, cannot access information not available to the public in general when it comes to crime scenes, disaster or emergency areas and government facilities.
The same US Supreme Court decisions, however, recognized the power of the states to enact laws - known as access laws - that will give media special access to emergency situations for news gathering purpose.
In a scholarly article entitled "Journalist Access" by Michael Roffe, published in the First Amendment Center's website, it mentioned at least three states (California, Ohio and Alaska) which guarantee media unfettered access in emergency situations.
The above-mentioned States have enacted statutes explicitly granting media the right to enter disaster or emergency areas for newsgathering. The California Penal Code, in particular, creates an exception for media when authorities close an area from the public where there is disaster or emergency. The landmark California case law on the matter, which was cited by Roffe in his article, is Leiserson v. City of San Diego, 1986--184 Cal. App. 3d at 51.
In this case, the San Diego police arrested a news cameraman from a local television station after refusing to leave a cordoned-off area where he was filming airplane crash wreckage. He sued the City of San Diego for damages, claiming that his arrest and imprisonment were illegal and violated his right to gather news in a disaster area as guaranteed under a media access provision of the California Penal Code.
Interpreting the meaning of the access provision, the California Court of Appeals (CA) held that "press representatives must be given unrestricted access to disaster sites unless police personnel at the scene reasonably determine that such unrestricted access will interfere with emergency operations. If such a determination is made, the restrictions on media access may be imposed for only so long and only to such an extent as is necessary to prevent actual interference. This means that members of the press must be accommodated with whatever limited access to the site may be afforded without interference."
What is interesting about this case is that the concerns raised by the defendants (the City of San Diego and its police force), as well as the ruling of the court find relevance to what happened during the Manila Pen siege.
In addressing defendants' argument that they have the duty to protect the public and might face civil liability if members of the media were injured after having been granted access to a disaster site - an argument very similar to that advanced by the Philippine National Police - the California court ruled that the statute does not in any way preclude police officers from recommending to press personnel that they not enter a disaster site; that their entry after such warning would constitute assumption by media personnel of risk of injury and elimination of possibility of any civil liability.
It is interesting to note that media personalities present during the December 12 Senate hearing, particularly ABS-CBN's Maria Ressa and MOPC's Tony Lopez, responded to this issue in a similar fashion by saying that it becomes the journalist's call when it comes to assessing a danger situation and protecting themselves. In other words the journalist assumes the risk by choosing to remain in an area of danger.
The California Appellate Court, however, made it clear that the unrestricted access granted to media under the statute does not apply to crime scenes.
Nevertheless, it would appear that in practice, the Los Angeles police allow media representatives to be at crime scenes subject to certain limitations or conditions. This is supported by the fact the in a media guidebook developed by the Press Photographers Association of Greater Los Angeles, it is stated that authorized media personnel are allowed to take photographs or make a report from inside police lines at an accommodating distance from the immediate crime scene area.
An "accommodating distance" is defined by the guidebook as that which will place the media adjacent to the immediate crime scene and give them a line-of-sight view of the incident. It went on to say that the position should be close enough to allow journalists to photograph the incident and is at a position, which is nearer to the scene than the general public is to be allowed.
The guidebook also directs journalists to avoid disturbing evidence at a crime scene when they arrive at the incident before the police, which was observed as a common occurrence.
Drawing from provisions of the Model Penal Code - a draft legislation developed by the American Law Institute in 1962 to serve as models to the states in drafting their own penal laws - Roffe's "Journalist Access" suggested certain guidelines to be observed by journalists to avoid clashing with the police in crime scene incidents.
According to Roffe, journalists should avoid situations in which, through clumsiness or craft, they conceal or destroy evidence of the crime, or tamper with a witness, informant, document, or other source of information.
Similarly, he went on to say, a journalist reporting on the scene must not be the one who inadvertently warns the criminal of impending discovery or apprehension. Roffe cited an incident during the Waco standoff in 1993 in which a reporter, who asked for directions to the roadblock outside the Branch Davidian compound near Waco, Texas, unintentionally warned lookouts about the arrival of federal agents.
Finally, he said reporters must conduct themselves at scenes so as not to provide, inadvertently or not, a weapon, transportation, disguise, or other means of avoiding apprehension or effecting escape.
Roffe observed, "although standards vary among states and situations, a consensus of legal definitions of what constitutes hindering arrests or prosecution of crime suspects gives the broadest overview of what authorities almost anywhere might consider unreasonable press access."
In other words, there is truly a need to establish by legislation what constitutes obstruction to authorities whenever media personnel cover emergency and crime incidents, as this is most often the reason given whenever members of the press are arrested.
To be sure, our existing law on obstruction of justice (Presidential Decree No. 1829) which PNP Director General Avelino Razon Jr. and DILG Secretary Ronaldo Puno erroneously cited as the one violated by arrested media personnel during the Manila Pen siege is not sufficient.
Any regulation seeking to clarify media access should address the following issues: distinctions between disasters or emergencies and criminal incidents and the level of media access in these situations; designation of media photo sites at incident scenes; media personnel's assumption of risk; the need for police authorities to maintain secrecy of certain operational information in order not to compromise their operation and safety of their personnel, such as SWAT team locations, time of assault, or identities of undercover operatives; and the unhampered movement of police or emergency personnel performing their duties.
In conclusion, the passage of legislation on media access should be vigorously pursued by the media to establish standards that will be mutually observed by the press and the authorities in the coverage of emergency and crime incidents and avoid incidents similar to the Manila Pen siege from happening again in the future. A vigilant press is the strongest guarantee of keeping aflame the fire of democracy.
