The Case Against the Legality of ‘Press Areas’

The idea that ‘press areas’ are needed to protect the physical safety of journalists may sound sensible, but it is not legally defensible
C. Ed Hsu
By

The explosion in social movements in Taiwan’s dynamic society in recent years has sparked intense debate on the appropriate use of police force and increased demand on its justifications. In a recent article on Thinking Taiwan, J. Michael Cole expressed legitimate concerns on new guidance from the police regarding designated “press areas,” purportedly to “accommodate” journalists but evidently intended to restrict the freedom of speech guaranteed under the Constitution [Editor’s note: heavily criticized by media and Taipei Mayor Ko Wen-je, law enforcement authorities have announced that the new rules will not be implemented for the time being].

At the heart of this initiative is a delicate balance between protection of people’s right to know and enforcement of law and order. Lessons drawn from the Western world, which has some experience with designated press areas, can contribute to informed discussion.

To this end, this article first evaluates the use of “press areas” to protect members of the press. With a review of relevant U.S. case law and Taiwan’s legal system, it discusses the manners and conditions for designating such areas, and secondly argues the need for “medical areas” in cases where activism persists for an extended period of time.

 

Protecting the physical safety of journalists: a valid account?

A major cause advanced by Taiwanese police for establishing the “press areas” was to “protect the physical safety of journalists.” The cause has intuitive appeal since public safety is within the police’s responsibility. However, this protection may not appear valid based on the following analysis.

First, freedom of speech protections are guaranteed in Article 11 of the Republic of China (ROC) Constitution — Taiwan’s de facto constitution. Based on the legal hierarchy of the Constitution commensurate with the U.S. Supremacy Clause, any attempt to restrict speech — such as dissemination of free speech by restricting members of the press in designated press areas, even in the name of protection — should be subject to heightened scrutiny, unless provisions in the Constitution otherwise override such protection.

Second, the account of “protection” was rejected in a landmark case in the U.S. In LEISERSON v. CITY OF SAN DIEGO, 184 Cal. App. 3d 41 (1986), a camera crewman sued the city for his arrest by a police officer for filming the site of a plane crash in a San Diego, California, suburb, in which 150 people were killed. The court had found that when police had reason to believe, with probable cause, that criminal activities were underway pending investigation, it could restrict the general public, including the press, from entering the scene. However, after the appeal, the court ruled that the public’s right to know outweighs the need to restrict journalists’ access to a zone of danger, on grounds of the “assumption of risk.”

Here, after receiving the proper warnings issued by the police, if a journalist still insisted on entering a zone of danger, he assumed the risk of any foreseeable injuries associated with the voluntarily entry for performing his duty. Such “assumption of risk” is a complete defense against any liability attached to the police’s inaction, for any and all potential injuries inflicted from a journalist’s voluntary acts.

Several cases in California, in addition to LEISERSON, have shown that the police was relieved of liability given proper warning and on victims’ assumption of risk. (Davidson v. City of Westminster (1982) 32 Cal.3d 197 (no duty to protect potential crime victim); Harris v. Smith (1984) 157 Cal. App.3d 100 (no duty to protect other motorists from drunk driver.)

Therefore, “protecting the physical safety of journalists” is arguably a plausible, rather than a legally defensible, rationale for “press areas.” It does not consider journalists’ voluntary assumption of risk. It has been rejected by several legal precedents and furthermore risks violating the constitutionally guaranteed dissemination of free speech. Therefore, any restriction on press freedom, such as through the establishment of “press areas,” should pass stricter evaluations.

 

Manners and limitations of ‘press area’ designation

In the U.S., police can by law either close or restrict public access to a newsworthy event, with an intent to protect public health or safety, while allowing specially authorized access for press coverage to satisfy “the right to know” of the general public (CAL. PENAL CODE § 409.5(a)(d)). A review of relevant case law indicates that the U.S. Supreme Court implicitly recognizes that, at least in some circumstances, the press has a constitutionally protected special right of access as specially authorized representatives (Precella, 1990).

The protected access privilege is so granted contingent upon journalists’ not interfering with emergency operations or crime investigations. Unless the police reasonably believe that a site is a crime scene — from which members of the press have traditionally been excluded — freedom of press coverage should be unrestricted.

One such practice is the establishment of a cordoned-off “press area” at the edge of, say, a crash site, from which the general public is excluded. When such measures are necessary, it is incumbent upon the police to show that (1) the designated access area enables the maximum access possible under the circumstances, and (2) the police clearly inform journalists of the availability and location of the designated area(s).  

 

Designated ‘Medical Areas’

Relevant to the “press areas” designation is the establishment of “medical stations/areas” for activist movements that persist for an extended period of time. This discussion is particularly timely, as recent protests have increasingly led to the forceful removal of healthcare providers from the scene by police.

The presence of healthcare providers at a protest site is protected by both international and domestic laws. The United Nations’ social and economic cultural agreements provide guidance forbidding interference with healthcare providers, or use coercive means to threaten, remove, or arrest health station/health workers at a site. Domestically, Article 106 Section 2 of the Medical Treatment Law provides sentencing of up to three years in jail for those “destroy medical institutions and other life-saving facilities, endangering other’s life, body and wellbeing.” Section 3 prohibits the use of coercive force to threaten, remove or arrest healthcare stations/healthcare workers in a way that interferes with service provisions. Additional punitive damages are assessed for actors who are civil servants, such as the police force.

Therefore, in light of the increased threats and coercion seen in Taiwan in recent years — including the forceful removal of healthcare providers — it is important to not only define the terms and conditions for establishing “press areas,” but also “medical areas” to protect the safety and liberty of protesters.

* * *

Restoring trust and confidence in the police force has become increasingly important in light of the highly active civil society that made headlines last year. The Taiwanese public expects accountability from the police. Imposing “press areas” may not satisfy such expectations; “medical areas” will.

 

C. Ed Hsu is adjunct professor teaching policy and health management in California. He is currently visiting at NCKU in Tainan and can be reached at: chsu@faculty.umuc.edu

One Response to “The Case Against the Legality of ‘Press Areas’”

January 07, 2015 at 10:00 am, Brian Dawson said:

I think this article just says it all!

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