Today the NPPA, along with the Reporters Committee for Freedom of the Press and supported by other news media organizations, filed a legal brief in support of a photojournalist’s claim of a right to access wild horse roundups on federal land. The Ninth Circuit Court of Appeals is set to again consider whether the Bureau of Land Management (BLM) violated wild horse advocate Laura Leigh’s First Amendment rights when it restricted her ability to photograph a 2010 horse roundup.
Leigh was trying to take pictures of BLM personnel corralling horses in the Nevada scrub when officials demanded she stay in designated public viewing areas. The views from these locations were obstructed, and Leigh’s wasn’t able to get the pictures she needed, according to court documents. Monitoring how the government handles these roundups is important, as they involve removing a vulnerable species from it’s natural habitat.
In the days following the incident, Leigh sought an injunction to prevent the land bureau from restricting public access in the future. Since then, the case has seen its share of legal wrangling. The injunction has been alternatively granted and overturned on several occasions. Now, the appellate court that sent the case back to the lower court last year is set to hear it again.
Though the case involves a relatively specific issue, it implicates a privilege of paramount importance: the right of the press and public to monitor the government. More specifically, this case is a matter of the extent of access the press and public should be allowed in pursuing that privilege. “Government activities need press access and review, particularly where they occur in remote and deserted locations that the public is unlikely to frequent,” said Jean-Paul Jassy of the law firm Bostwick & Jassy LLP who authored the brief along with Kevin L. Vick of the same firm, with input from Gregg P. Leslie, Legal Defense Director for the Reporters Committee for Freedom of the Press and Mickey H. Osterreicher, NPPA general counsel.
Like many First Amendment liberties, the right to access government activities is not absolute. Certainly, some government actions involve serious danger or demand confidentiality to the extent that some restrictions are reasonable. The courts have developed a test for balancing the government’s interest in keeping people away from certain situations against the people’s right to know (usually provided by press coverage) in seeing what their government is doing.
Articulated in Press-Enter. Co. v. Superior Court of California for Riverside Cnty., 478 U.S. 1, 8, the “experience and logic” test considers 1) whether the activity in question has historically been open to the press and general public and 2) whether public access plays a significant positive role in the function of that activity. The stronger these questions are answered in the affirmative, the heavier the burden on the government to demonstrate an “overriding interest” that warrants restriction. The government also must show that these restrictions are narrowly tailored to serve that interest.
In the case at hand, the lower court found that 1) wild horse roundups have traditionally been open to the public and 2) open access plays an important role in “protecting the interests of the overpopulated horses and news gathering for the benefit of the public.”
However, the court ruled in the government’s favor. The U.S District Court judge found that the access restrictions were warranted by concerns over safety and effective horse gathering. The NPPA and Reporters Committee for Freedom of the Press strongly disagree. Our objections were outlined in the brief to the Ninth Circuit:
“The court afforded too much discretion to the Government to decide whether observing the gathers was safe, without recognizing that journalists routinely – and critically – face far more dangerous situations on a regular basis without official interference or protection. [T]he court below denied meaningful public and press access to the horse roundups, while sustaining unconstitutional restrictions on such access.”
The press groups contends that the restrictions as they stand do not allow meaningful access to the roundups. Photographers simply cannot get adequate images from the locations they are relegated to. Further, the government has not presented convincing evidence that the roundups are dangerous to the point that such restrictive locations are needed.
This is especially so, the brief notes, because viewing “large, remote operations like wild horse roundups is not an option for most people, [and] the media act as public surrogates, conveying those images to a vast public audience and enabling the public to satisfy its civic duty in monitoring the government.”
“The BLM restrictions on access are very similar to those used to limit recording police activity in public places as well as being analogous to the right of access to courtroom proceedings,” said Mickey H. Osterreicher. “We also pointed out to the 9th Circuit in our argument and with an appendix of photographs, just how uniquely important and compelling visual images are to the newsgathering process,” he added. “We are hopeful that the Court will take judicial notice of that important distinction in our favor,” Osterreicher added.
Laura Leigh is represented by Gordon M. Cowan. His brief may be read here. The other news media organization that joined in the brief were: the American Society of News Editors, The Association of American Publishers, Inc., the First Amendment Coalition, Battle Born Media LLC, the Los Angeles Times, the Student Press Law Center, the National Press Club, National Public Radio, Inc., The Nevada Press Association, the Reno Gazette-Journal, The Seattle Times Co., Stephens Media LLC and the Society of Professional Journalists.