This section provides an overview of the laws that govern your right to access different types of public and private property.
While the First Amendment protects your right to engage in speech, it does not grant you unfettered access to the property of others. You should always keep in mind that your right of access is no greater than the public's right of access. In general:
Even when you have a right to access property, however, you may be asked to leave by law enforcement or the owner of the property. In these situations, it is important that you understand your rights ahead of time. You should read the relevant local statutes, familiarize yourself with the common law, and perhaps contact the police and other government offices in the area to better understand your right to access different locations.
Generally speaking, government officials and persons in possession of private property are the only figures who can restrict your access to property. If one of these figures asks you to leave a place that you believe you have a right to access, you should explain why you have the right to stay. They may tell that current circumstances are an exception, or you may be able to convince them to let you stay. In any case, you must take care—you can be charged with trespass for remaining if you do not have a right to remain there.
Depending on the type of property you will be entering, you should review the section on:
The U.S. Constitution protects your right to speak and, in some instances, grants you a right to access public places to gather information. Your right to access public property is not absolute, however. Generally speaking, you have the same right of access to public property as the general public.
This section covers your access to public (i.e. government-owned) property. (Refer to the section on Access to Private Property for more information on entering privately owned property.) Not all government-owned property is open to the general public. Depending on the type of property you wish to enter, your right to access public places may be constrained by reasonable time, place, or manner restrictions, or by the government's interest in managing its property.
Here is an overview of the three types of public property you are most likely to encounter:
Property That Historically Has Been Open to the Public
Your right to access public property is strongest when the area you wish to access has historically been open to the public for the exercise of speech, public debate, and assembly. These areas are known as public forums and include spaces such as sidewalks, parks, and town squares. You may freely enter and gather information while in these public spaces, but you should do so without disturbing the peace or interfering with those around you. Your right of access does not confer immunity from all liability if your conduct is disruptive or harassing.
Property That Is Open to the Public for a Limited Purpose
Your right to access government-owned property that is only partially open to the public is a bit more limited. If the general public is permitted to access only certain areas or for certain limited purposes, you right to access the property for newsgathering purposes is similarly limited. For example, some parts of a courthouse are open to the general public, but portions of the courtrooms themselves are accessible only by the parties in the litigation and judges' chambers are completely off limits to the public.
However, some public property, even though it is open only for limited purposes, can take on the attributes of a public forum discussed above. A classic example of this type of property is public schools and universities. Although public school and university buildings are not wholly open to the public, some parts of a campus may be considered a public forum. If a school's large open quad is accessed from public sidewalks and streets and freely used by the general public with no apparent objection from the school administration, then the quad may be considered "dedicated" to public use, and therefore more like the traditional public forums of the public park and sidewalk. Additionally, if the school opens certain of its rooms for non-school meetings that are open to the public, those rooms, during those times, will be treated as public forums.
Remember that because public schools are not entirely public forums, school administrators often have the discretion to restrict the entry of outsiders, particularly while the school is in session. Check in with the school administration before entering school grounds or you may be liable for trespass. Additionally, some states laws prohibit people from loitering within a certain distance while school is in session. These "school loitering laws" are mainly aimed at keeping sexual predators and drug dealers away from schoolchildren, but be aware that their language may be broad enough to cover lawful or innocent activity as well.
Property That Is Not Open To the Public
You cannot access or gather information on government-owned property that is not open to the general public. This type of property is known as a nonpublic forum in which the government can charge you with trespass if you enter without authorization. The following are examples of nonpublic forums:
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.
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.
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.
If you enter private property without the owner's permission or enter portions of public property that are off limits to the public, you could be liable for civil or criminal trespass. For example, you may not walk into your neighbor's house uninvited, sneak into your congressperson's office, or pretend to be a public official to gain access to someone else's property.
In general, if you are invited onto someone's property or otherwise have permission to be on the property, you will not be considered a trespasser. If you are asked to leave, however, you may be trespassing if you refuse to do so.
Seeking Consent to Enter Property
You should make sure that you get consent before entering someone else's property. This consent must come from the individual, group of individuals, or business entity that is in possession of the property. In many cases this means that you need to get the owner's consent. However, if you want access to leased property, you must get the lessee's consent. Thus, a resident of an apartment complex can invite you into their apartment and you will not be considered a trespasser even if the landlord or owner objects to your presence. Conversely, if the owner gives you permission to access the resident's apartment and the resident declines to do the same, you may be liable for trespass if you enter the resident's property.
In some cases you'll be able to get express consent (verbal or in writing) from the person in possession of the property. In other cases you may believe you have the person's implied consent for your ability to enter her property. This type of situation occurs when:
If you rely on implied consent, you may find it difficult to defend yourself if you are charged with trespassing. You will need to show that a reasonable person in the same situation would have believed that there was implied consent based upon the conduct of the person in possession of the property and the overall circumstance.
Scope of Consent
If you have a right to be present on private or public property you will not be trespassing if your use of the property is consistent with your right to be there. Make sure you understand the scope of the permission you've been given and stay within its boundaries.
For example, you generally have a right to attend, and report on, court hearings, legislative sessions, and some governmental meetings. You can learn more about these rights in our section on Access to Government Information, Electronic Records, Meetings and Public Spaces. However, you have no right to enter a judge's chambers located in the courthouse, or private offices in the same building hosting the legislative sessions and other governmental meetings.
Misrepresenting yourself in order to gain consent
You may want to engage in investigative reporting tactics in order to inform the public about improper business practices or governmental wrongdoing, and thus may feel the need to misrepresent yourself in order to gain the necessary consent. If you do so, you may find yourself facing charges of trespass on the basis that your misrepresentation vitiated the consent given to you.
For example, in Food Lion v. Capital Cities/A.B.C., two ABC journalists falsified their resumes, and became employees of Food Lion grocery stores. 194 F.3d 505 (4th Cir. 1999). The two journalists gained access to areas of the store that were off limits to the general public and used hidden cameras to record unsanitary meat handling practices. The appellate court upheld a jury verdict finding the journalists liable for trespass on the basis that the journalists had breached their duty of loyalty to their employer, Food Lion.
In a second case involving ABC, however, a court did not hold ABC liable for trespass because it concluded that ABC's employees did not actually interfere with the owners possession or use of the property. Desnick v. American Broad. Cos., 44 F.3d 1345 (7th Cir. 1995). In Desnick, two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. The employees used hidden cameras and recorded the eye examinations which were subsequently used for a news story about the care and advice received at Desnick's eye clinics. Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.
Other issues may also come into play when you misrepresent yourself, such as laws against posing as a public official. Given the complexity of the caselaw, if you feel that you must conceal your identity in order to access property, you should get legal assistance to avoid claims of trespass (as well as other claims like fraud and invasion of privacy). Refer to the section on Finding Legal Help in this guide for more information.
While you can't always eliminate your legal risks when entering the property of others, there are a number of ways you can minimize your risk of liability. Some suggestions include: