Access to Government Property, Disaster Sites, Discriminatory Access, Etc.

I. Access to Institutions--when the press wants to report on conditions in public institutions (mental hospitals, prisons. . .) they want to see the conditions for themselves and talk to the inmates

Cases:

Pell v. Procunier (1974) p. 633

Houchins v. KQED (1978) p. 637

 

II. Access to Other Countries--The Passport Cases

Cases:

Zemel v. Rusk (1965)

Haig v. Agee (1981)

Regan v. Wald (1984)

III. Access to Military Operations

The "lesson" of Viet Nam

Grenada in 1983

Flynt v. Weinberger (D.C.Cir. 1985)

Desert Storm in 1990

The Nation Magazine v. Department of Defense (S.D.N.Y. 1991)

JB Pictures, Inc. v. Department of Defense (D.C.Cir. 1996)

Somalia in 1992

Kosovo in 1999

Afghanistan in 2001

Cases challenging Pentagon's restriction of coverage

Getty Images News Services Corp. v. Department of Defense (D.D.C. 2002)

Flynt v. Rumsfeld (D.C. Cir. 2004), pp. 647ff., cert. denied.

Larry Flynt is alleging that the delay by the DOD in granting Hustler’s reporters access to the military operation in Afghanistan was a violation of 1A rights. [Eventually a reporter from Hustler did accompany troops searching for al Qaeda in May 2002.]

On Oct. 30, 2001 Flynt requested that Hustler reporters be embedded with troops in Afghanistan. DOD refused, citing the exceptions to the Directive covering media reporting:

- Special operations
-Electronic security
-Pools when the number of interested media requesting access is large
-[Expulsion of media who violate rules]

In this case, at the time of the request, the special operations exception was justifiable; only a small number of special ops forces were there. Flynt was directed to contact the Fifth Fleet Public Affairs Officer to get the same access being granted to other media entities at that time: air strikes, humanitarian aid, interviews with specific soldiers. Flynt did not contact the Officer, but filed this lawsuit.

The Defense Directive 5122.5, Enclosure 3 provides for “coverage” of the war. After Desert Storm (1991) negotiations between the Pentagon and major news organizations resulted in an agreement that—

“pools are not to serve as the standard means of covering U.S. military operations”

access for reporters and photographers (“ride on military vehicles and aircraft whenever feasible”)—embedded

no interference with independent reporting

{censorship}—if the reporting could “endanger the safety of troops or the success of a military mission”

The court maintains that Flynt is confusing covering the war (“Although it would be dangerous, a media outlet could presumably purchase a vehicle, equip it with the necessary technical equipment, take it to a region in conflict, and cover events there. Such action would not violate Enclosure 3 or any other identified DOD rule.”) with a right to be embedded with (i.e. travel with) troops. No such “right” exists. There is no history of such access. Embedding is relatively new (Desert Storm 1991).

In conclusion:
1. there is no constitutional right of access to travel with the military

2. Hustler was not treated differently than other media outlets; all have been restricted to the exceptions in Enclosure 3

Iraq in 2003

Embedded reporters

Pentagon ban on photos of flag-draped coffins

Sinclair's refusal of their ABC affiliates broadcast of "Nightline's" roll call of all troops killed in Iraq

The case of Zoriah Miller-an embedded photographer in Iraq

 

IV. Access to Disaster Sites

Case:

City of Oak Creek v. Ah King (Wis. 1989) pp. 654-655

 

V. Discriminatory Access

Cases:

Sherrill v. Knight (D.C.Cir. 1977) p. 662

Borreca v. Fasi (D.Haw. 1974) p. 664

 

VI. Excluding Cameras From Executions

Garrett v. Estelle (5th Cir. 1977)

KQED v. Vasquez (N.D. Cal. 1991)

 

VII. Requested Broadcast of Execution

Lawson v. Dixon (1994) p. 668