Weekly Wire
Weekly Alibi Supreme Court Goofs

By Erica Ford

JUNE 14, 1999:  I was never a fan of the TV show "Cops." Nevertheless, I'm troubled by the recent Supreme Court decision regarding media observation of police activities.

In Wilson v. Layne, the U.S. Supreme Court held that it violated the Fourth Amendment, which protects citizens from warrantless searches and seizures, for media to be present during the execution of valid search warrants. In Wilson, a newspaper reporter and photographer were on a "ride-along" with a team of U.S. Marshals. The Marshals had a valid search warrant to search the Wilsons' home for a fugitive. The reporter took notes and the photographer took photos, which were never published. The Wilsons sued the officers, arguing that the presence of the media violated their Fourth Amendment rights. The Supreme Court decided that the presence of the media expanded the scope of the search beyond that which was permitted by the terms of the warrant, which was unconstitutional. The Court rejected arguments that the media served legitimate purposes, such as informing the public about the criminal justice system or curbing police abuses.

Although citizen privacy needs great protection, the decision leaves two concerns. First, the Court did not consider First Amendment issues. That's not to say that the First Amendment should outweigh the Fourth Amendment. However, the Court didn't even try to balance the two rights or to give a thoughtful analysis of why one right would be given more protection than another. Such an omission prevents us from knowing where one right ends and the other begins.

Second, the Court failed to explain how the actions of the media, a private entity, gave rise to a constitutional claim. The Constitution was designed to protect against abuses by the government, not by private parties.

It's important to note that the claimants sued the police, not the media. Superficially, the Constitution seems to apply, since police are government officials. But the only "improper" government action was "allowing" the media to be present. The concerns were really with the media's presence and actions.

As a practical matter, the police should not be held responsible for the media's presence. It's not as if the police had the reporters on leashes, dragging them along to invade a citizen's privacy. The reporters were present on their own volition. The Supreme Court admitted, "A private photographer was acting for private purposes, as evidenced in part by the fact that the newspaper and not the police retained the photographs." If a private person is acting for private purposes, there should be no Fourth Amendment violation. The practical effect of this decision will not be to curb media presence at searches or arrests, but to invite the media to arrive independently of the officers.

A wise lawyer argued that the reporters were "cloaked with the authority of the police" when they accompanied the officers. The reasoning seems to be that the police "loaned" their authority to the reporters, which gave rise to the Fourth Amendment violation. Nevertheless, the reporters were present by their own choice, and not at the request of the police. Absent a demand by the police for media presence, the police should not be liable for monetary damages merely for allowing media to be present. If citizens want to curb media invasions into privacy, they can pursue traditional tort remedies such as Trespass and Invasion of Privacy. There is no need to sue the police for the conduct of the media.


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