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Right to Record

The most accurate information for a news report comes from the news media’s reliance on recording to gather such information. However, there are many laws, which journalists must follow to legally record activities. Interstate phone calls, trespass laws, and the Fourth Amendment are three types of laws, which may affect the right of news media to record and distribute such recordings.

Federal law and the Federal Communications Commission (FCC) both have rules regarding the consent of parties to record phone calls, which cross state lines. While “Federal law allows recording if only one party consents,” the FCC requires the consent of all parties involved for one to record the call (Trager 314). For example, in March of 1992, a prostitute in Philadelphia spoke on the phone with “newspaper columnist and television producer” Michael Krauss in New York, which “reporters for The Globe allegedly recorded” (“New York”). The Globe reporters proceeded to publish an article in their tabloid, which included information gathered via the phone call. Krauss sued for libel and included “a claim under Pennsylvania’s wiretap statute” (“New York”).

The FCC rule may hinder the news media if they would like to record a phone call between people in two different states. However, the prostitute consented to the recording of the phone call, and the court found “the New York wiretap law should apply because any injury that was suffered by Krauss occurred in New York” (“New York”). While interstate phone call rules may affect the rights of news media to record, so does recording in expected areas of privacy.

Trespass laws do not put journalists above the general public. An owner or resident of an establishment may admit the news media in, but recording in their private space may violate their consent of entry. To gain entry, “reporters may use deceit,” but there is still some disagreement about this among the courts (Trager 262). For example, ABC journalists went undercover as Food Lion employees to record and broadcast the supermarket’s improper food handling practices. In Food Lion, Inc. v. Capital Cities/ABC, Inc. the court found “Journalists who lie on employment applications to gain access to private facilities for newsgathering activities are not protected by the First Amendment and may be liable for trespass or other offenses” (“The Landmark”).

Food Lion hired the journalists to work on their property. However, they did not grant them permission for their presence in the non-public parts of the establishment to record their work duties for broadcast. Therefore, the news media may be limited by the places they have access to record due to trespass laws. Just as trespass laws protect one’s privacy rights, so does the Fourth Amendment.

Search warrants and emergency control of property obtained by public officers give them the legal power to enter private property without the owner or resident’s consent. This is because the Fourth Amendment protects against searches and seizures without probable cause. While it is common for the news media to participate in ride-alongs, where they travel with a public officer as they perform their duties, they may not record the officer’s work if it takes place within a person’s home. In Ayeni v. Mottola, a federal appeals court ruled, “A search warrant is simply not a press pass” (Sadler 212). In 1994, Secret Service agents invited the CBS Street Stories crew to record them during a “search of the home of a man suspected of credit card fraud” because they had a warrant to do so (Sadler 212). The man sued, claiming the broadcast violated his Fourth Amendment protection. Although the Secret Service had a search warrant, the “federal appeals court [said] the CBS camera’s presence in a private home had no legitimate law enforcement purpose” (Sadler 212). The Fourth Amendment affects the news media’s ability to record and distribute such recordings because doing so would be an invasion of privacy.

The news media’s ability to record and disseminate events become minimized when one makes a call across state lines, enters land without permission, or invades one’s private dwelling. Reporters must abide by these laws to continue to convey accurate information. These laws aim to balance a citizen’s right to privacy while allowing the news media to exercise their First Amendment rights.

Reporters Committee. “New York court won’t apply Pennsylvania wiretap law.” Reporters

Committee for Freedom of the Press, Accessed 08 Nov. 2019

Reporters Committee. “The landmark Food Lion case.” Reporters Committee for Freedom of the Press, Accessed 08 Nov. 2019

Sadler, Roger. Electronic Media Law. SAGE Publications, 2005.

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