What follows is some information to consider when you see a reporter or photographer out trying to do his or her job.
Access to an
accident / crime, etc.
Journalists have a right of access to accident and crime scenes. Obviously to be avoided are situations in which a journalist, through clumsiness or craft, “conceals or destroys evidence of the crime, or tampers with a witness, informant, document, or other source of information, regardless of its admissibility in evidence.” Similarly, a journalist reporting on the scene must not be the one who inadvertently “warns the [criminal] of impending discovery or apprehension.” Unfortunately, this concern is all too real. In 1993 a reporter who asked for directions to the roadblock outside the Branch Davidian compound near Waco, Texas, unintentionally warned lookouts that federal agents were on their way. A tragic gunfight ensued. Finally, 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.”
Where a proceeding or an area is off-limits to the general public, such as on private property, the news media have no clearly established right to gain access to it. Although the Supreme Court said in Branzburg that newsgathering is protected by the First Amendment, it also cautioned that journalists “have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.”
Public property allows access, private property allows less access.
Access becomes an issue when journalists try to enter the private or restricted areas. These are areas in which journalists’ presence might become problematic. The police are allowed to establish reasonable restrictions on access to crime and accident scenes, and to enforce the restrictions when necessary. Reasons to restrict access include preventing obstruction of a police action or investigation; maintaining safety; preserving evidence integrity, and protecting privacy. Free-press rights are often in tension with privacy rights. The Supreme Court has held in Wilson v. Layne (1999) that news media may not accompany police into a private home in the execution of a warrant. The only exception to the rule in Wilson is if the media aid in the execution of the warrant — a rare situation indeed, in that most news organizations would bar reporters from offering such assistance. Hidden cameras are illegal in Hawai‘i.
No nationally recognized newsgatherer’s privilege exists. Instead, the protections currently in place for newsgatherers are set forth in a patchwork of inconsistent court decisions and state statutes.
Newsgatherers — a term that includes reporters, authors and television producers — often are subpoenaed to provide information in criminal and civil court proceedings.
In some cases, the information sought is the identity of a confidential source. In others, the subpoenaing party seeks a reporter’s notes, video outtakes or other unpublished information.
And in others, the newsgatherer is subpoenaed to testify about a crime or other event he or she witnessed.
Cited from: www.firstamendmentcenter.org/Press/topic.aspx?topic=journalist_access
• Hawai’i currently does not have a shield law.
• The California Shield Law provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering. The Shield Law protects a “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service” and a “radio or television news reporter or other person connected with or employed by a radio or television station.”
The Shield Law also likely applies to stringers, freelancers, and perhaps authors. There need be no assurance or expectation of confidentiality.
• Unpublished information
Specific information obtained during newsgathering but not disclosed to the public
Includes “all notes, outlines, photographs, tapes or other data of whatever sort”
Includes newsgatherer’s eyewitness observations in a public place
Applies even if published information was based upon or related to unpublished information.
• Protects only information obtained during newsgathering.
The Shield Law only protects a journalist from being adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for the failure to comply with a subpoena.
The Shield Law does not protect the journalist from other legal sanctions. Thus the Shield Law generally does not apply when the journalist or news organization is a party to a lawsuit and other sanctions are available.
Cited from: www.thefirstamendment.org/shieldlaw.html
Hawaii has established varying confidentiality privileges for journalists through their courts; and submitted to the United States Supreme Court, “A federal policy that allows journalists to be imprisoned for engaging in the same conduct that these State privileges encourage and protect ‘buck(s) that clear policy of virtually all states,’ and undermines both the purpose of the shield laws, and the policy determinations of the State courts and legislatures that adopted them.”
Cited from: freejosh.pbwiki.com/Assembly+Joint+Resolution+31?raw=1