Access to Private Property

You may wish to access another's private property in order to gatherinformation to publish online. However, while there are (rare)circumstances in which the law will condone your entry onto privateproperty without permission, in general you do not have any right to enter the private property of others without their consent. You should read this section in conjunction with the section on Trespass in order to understand the issue of consent.

Types of Private Property

Residences: The term "private property" encompasses awide variety of places, from homes to businesses open to the public.Courts are highly unsympathetic to those who try to gather news in private homes without consent, and if you enter a private home without permission, you may be liable for invasion of privacy, trespass and, in certain cases, intentional infliction of emotional distress.

In the 1940s, the Supreme Court took on the issue of "companytowns" with regard to the First Amendment. Although the company townwas private property owned by the company, the fact that it had beenopened up to use by the public generally made it subject to theconstitutional requirements of the First Amendment. Marsh v. Alabama, 326 U.S. 501 (1946).

Today, there are fewer company towns; however, private, gatedresidential communities may occupy a similar niche. Visitors seekingaccess to a private residential community must usually announcethemselves at the gate or receive permission from the development'ssecurity guards in order to enter. It's often a wise idea to seekpermission before entering such a community. But even if you do not get express permission, your right to access will be strongest if theprivate residential community opens its gates to the public at large.See the section on Access to Public Property in this guide for more information.

Businesses: If you try to access businesses that do not open themselves up to the public, you may be liable for trespass.However, as a member of the public you will be able to accessbusinesses open to the public without fear of liability. Your right ofaccess does not necessarily translate into a right to gatherinformation while you are there. The business has given you consent touse the premises as a patron, and your actions need to be within thescope of that use.

For example, a restaurant consents to your presence for you toenjoy eating a lovely meal in the company of good friends. In thisscenario, taking notes about the food, ambiance, and service may befine, whereas approaching other diners for interviews or forphotographs likely oversteps the scope of the restaurant's consent, andyou could be liable for trespass. See the Trespasssection in this guide for more information. Note that you may onlyaccess the areas of the business that are open to the public.Continuing our example, while you can enter a restaurant, you cannot goto the kitchen without additional permission.

Shopping malls have come to occupy a place in moderncommunities akin to the town square or main street and thus arearguably public, rather than private, in nature. But unlike thetraditional public forum of a town square, these establishments areprivately owned places of business. Since the Supreme Court's decisionin PruneYard Shopping Center v. Robins,447 U.S. 74 (1980), stating that there is no constitutional right tofree speech in a private shopping mall, the law of access to shoppingmalls has largely been left to the states. State courts vary on thequestion of whether to allow access to shopping malls. Those that dofind them to be public or quasi-public forumsstill note that owners may impose reasonable time, place and mannerrestrictions on expression, provided the regulations arecontent-neutral, narrowly tailored, and leave open sufficientalternative channels of communication.

If you want to go to a shopping mall and gather information,try to avoid disrupting business activities. For example, it would bebetter to approach people walking in the corridors of the mall, or inthe food court, than to station yourself at the door of a store andattempt to talk to everyone entering or exiting.

Entering Private Property While Accompanying Government Officials

You may be invited by law enforcement or other government officials to accompany them while they perform their duties. These types of situations are called "media ride-alongs" and can be an effective way to gather information about how public officials do their work.  However, ride-alongs may take you to events occurring on private property.  The Supreme Court has held that accompanying police in their execution of an arrest warrant in a private home may make you liable for trespass. See Wilson v. Layne, 526 U.S. 603 (1999).

The Reporters Committee for Freedom of the Press has a terrific overview of how courts have treated trespass issues in media ride-alongs. The issue is complex. As a rule of thumb: if you are invited on a media ride-along and enter private property, you should get consent for your presence from the person in possession of the property.  Additionally, you should note that depending on the circumstances, your presence may jeopardize an investigation. Thus, do not be surprised if your local law enforcement authorities prohibit media ride-alongs altogether.

 

Last updated on November 5th, 2010

   
 
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