No Newsgathering, Please   

In three incidents, photojournalists are told to keep out--and their film is confiscated.

It's a long way from the Tora Bora caves to Ground Zero in lower Manhattan. It's farther still to the Minneapolis suburb of Maplewood.

But these disparate locations have at least one thing in common. All three are places where photojournalists were detained by authorities who confiscated their film and equipment. In each case, the pretext for their treatment was that the journalists were trying to chase down the news in a location where they weren't welcome. In other words, they were guilty of the "crime" of newsgathering.

In 1972, in Branzburg vs. Hayes, a landmark case about the reporter's privilege, the U.S. Supreme Court observed that "news gathering is not without its First Amendment protections." But the high court has never defined precisely the parameters of that protection, and it has made clear that journalists have no constitutional right of access greater than that of the general public.

In December, Afghan mujaheddin snatched cameras and film belonging to Associated Press and New York Times photographers who were shooting pictures of a destroyed al Qaeda training camp. The Afghans told the journalists they did not have permission to do so. The AP photographer, David Guttenfelder, told Cox News Service that a U.S. soldier who was standing nearby refused to help, saying, "I know what journalists have to do, but we have to do this. It's a matter of our security." Although the journalists' equipment and money were returned to them by the militiamen, the memory cards containing digital images were not.

On September 11, freelance photojournalist Stephen Ferry, who was working for Time magazine, was arrested at the World Trade Center. He had donned New York City Fire Department coveralls and a hard hat to protect himself from the debris and smoke, and he carried some of his cameras in a firefighter's toolbox, which he claims had been given to him by a rescue worker. Ferry was charged with criminal impersonation. Two days later, after proffering as identification an expired driver's license bearing an altered date, he was charged with criminal possession of a forged instrument and jailed for four days. His cameras and 28 rolls of film were seized by authorities. Although the cameras were returned, state prosecutors have retained the film, ostensibly as arrest evidence. In February, the trial judge refused to compel the prosecutors to return Ferry's film, finding that "the First Amendment has not been implicated."

But these confrontations aren't limited to the fallout from the events of September 11. Back in December 1999, Maplewood, Minnesota, police confronted two local cable TV hosts, Kevin Berglund and Bob Zick, who had tried to videotape a farewell banquet for some local officials without paying the $15 admission fee. The two insisted that the event was open to the public, and when they refused to leave, Berglund was arrested and the tape seized. A copy was returned to him two days later. Berglund was acquitted of charges of trespassing, disorderly conduct and obstructing the legal process in May 2000.

Berglund and Zick sued Maplewood officials, claiming violation of the federal civil rights statute, the Minnesota open meetings and journalists' shield laws, and the federal Privacy Protection Act, which prevents law enforcement authorities from seizing journalists' work product and documentary materials in most circumstances. But a federal district judge ruled in late October 2001 that because Berglund and Zick had refused to pay the entry fee, "they had no right to the information at the event under the First Amendment." The appeal will be heard by the 8th Circuit U.S. Court of Appeals later this year.

In the wake of the murder of Wall Street Journal reporter Daniel Pearl, a journalist who paid the ultimate price for trying to gather the news, these three incidents may seem comparatively trivial. But each reveals a sad and significant truth about the way too many government employees regard the role of journalists in a free society.

To their credit, elected officials ranging from President Bush to House Minority Leader Dick Gephardt eloquently acknowledged the importance of a free press in the abstract and recognized the tragic consequences that follow after one particular reporter's voice is stilled. But when the rank-and-file--the cop on the beat, the soldier, the prosecutor--encounter the persistent journalist who wants to capture images that someone thinks might pose a security threat or desecrate a scene of unfathomable loss or annoy 100 guests at a party, all too often, the reaction is to threaten or arrest him, jail him and, most important of all, confiscate that film.

Does the First Amendment really protect newsgathering? I wonder.