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First amendment |
To share or not to share: Molly Van Wagner Case description After Michigan State University was defeated in the Final Four NCAA basketball game by Duke University on March 27, 1999, in St. Petersburg, Fla., riots erupted near the MSU campus in East Lansing, Mich., and lasted through the following day. Hundreds of rioters caused about $160,000 in damage, destroying a TV camera, vandalizing cars, throwing bottles, breaking windows, burning couches and setting fire to a police cruiser in a neighborhood near the MSU campus (Hale 26). "The community was furious," said Judith Taran, communications administrator for the City of East Lansing. MSU student David McCreery, a photojournalist who worked as a stringer for the Associated Press at the time, shot several rolls of film during the riots. After processing his film at the AP's Lansing bureau, McCreery took the negatives to Meijer, a Michigan-based chain, to have prints made. After dropping off the film, McCreery returned to the store to retrieve his prints and was met by an East Lansing police officer. A store employee had called the police after seeing the riot photos. McCreery was detained for about two hours while police obtained a warrant to seize at least 73 of McCreery's negatives and 103 prints as evidence to prosecute suspects in the riots (Walters). "I never thought I'd spend my 21st birthday getting detained by the police," McCreery said during a speech in June at the National Press Photographers Association's national convention in Denver. "I never thought they would seize negatives of mine." Soon after, McCreery's photos were published on a police Web site (www.ci.east-lansing.mi.us/riot/index.htm) and broadcast on a local cable station in an effort by local law enforcement officials to identify and prosecute rioters in the photos. Covington & Burling, the National Press Photographers Association's law firm, was alerted to the situation and offered free legal services to McCreery. "I don't think the courts have ever faced the issue before," said Ed Walters, McCreery's attorney. "The precedential value of this case is bigger than legal." Walters immediately sent letters to the East Lansing Police Department, the department's Internet service provider and the cable network on which McCreery's photos were broadcast. The letters warned that publishing copyrighted photos without a photographer's consent was copyright infringement and asked that the photos be removed along with references to McCreery, who was concerned that his reputation as a journalist would be damaged. Nineteen news organizations, including five newspapers, were subpoenaed by police and prosecutors for their unpublished video footage and still photo negatives. Of those, five TV stations cooperated, supplying local law enforcement with their unbroadcast material. The remaining news organizations, including the Lansing State Journal, The State News (MSU's newspaper) and the Detroit Free Press, banded together and fought the subpoenas (Phillips). The State of Michigan won the case in the District Court, the Circuit Court and the Court of Appeals. When the case reached the state Supreme Court, however, it was decided that prosecutors had used the wrong subpeona. The State served the media organizations a second time, this time with an investigative subpoena, and again, the media refused to cooperate with law enforcement. The second time, the State won the case in the District Court, but the media appealed and won the case in the Circuit Court (Phillips). As of 9 December 1999, the case was still in the Court of Appeals, and 135 people had been charged with offenses stemming from the riots. The case is closed until further evidence is found, and almost all those arrested as a result of tips have been either prosecuted or dismissed for lack of evidence. Ethical Analysis In these two related cases, the Potter Box decision-making model can be applied in order to come to a reasonable, ethical conclusion regarding whether or not media organizations have a responsibility to share information with law enforcement. In step one of the Potter Box model, the journalist must understand the facts of the case (Patterson 99). In this case, the facts are clear, and the news organizations are in control of the potentially incriminating material -- negatives and video footage. The ethical choice lies in whether the media is willing to share the information with law enforcement or not. "They're capturing a criminal act on film," said Allie Phillips, Ingham County assistant prosecuting attorney. "If you capture a crime, then you should be obligated to report it." In step two, the journalist must outline the values inherent in the decision (Patterson 99). In this case, value is placed on the media's responsibility to the community. The question arises whether the media should place more value on retaining sources' confidentiality -- in this case, that of rioters -- or on prosecuting criminals for the sake of the community. There has to be another method of getting the information out, said Chris Holmes, the Lansing State Journal's chief photographer. "You've got to maintain the difference between the police and the press." While sharing information with law enforcement would aid the community by helping police indentify criminals, it would jeopardize journalists' newsgathering ability. In a future, similar situation, photographers could find themselves at physical risk if they are in a situation where they are able to capture on film a person committing a crime. "I think all cameras are going to be targets," said Dave Olds, a photographer for the Lansing State Journal who was injured during the riot. If given the power, Olds said he would get the public to understand that the issue goes far deeper than prosecuting a few criminals. In step three of the Potter Box model, after deciding what is most valued, the journalist must apply relevant philosophical principles (Patterson 99). In this case, under Kant's categorical imperative, journalists would act according to the premise that the choices they make should become universal law (Patterson 8). If media organizations choose to share information with law enforcement in this situation, under Kant's thory, those organizations would then have to be willing to share their information in future situations. This violates the social responsibility theory of the press, which states that the "mass media. . .will provide citizens with what they need to know to get along in political society" (Patterson 152). As part of performing that job, the media is charged with acting as a watchdog on government (Patterson 162). Sharing information with law enforcement could set a dangerous precedent for all news organizations. Eventually, law enforcement officials could come to rely heavily on the media for information, and the media could find itself stuck in a role as government informer rather than retaining its important position as a government watchdog. This would only serve to alienate the community by severely impairing the media's newsgathering ability. In step four, the journalist must articulate a loyalty (Patterson 99). In this case, the media organizations involved must choose between loyalty to the community and loyalty to journalism as it was provided for in the Constitution. The First Amendment gives journalists both rights and responsibilies that are not given to any other profession. Ultimately, journalists must be loyal to the idea of journalism as a check on government, not as government's partner. Epilogue Approximately one month after McCreery's photos were posted on the East Lansing Police Department's Web site, the Internet service provider responded to attorney Walters' letter threatening litigation and removed the photos. The police department no longer uses that Internet service provider, but not because of the riot photo situation, said East Lansing Police Lt. Tom Johnstone, who headed the riot task force, which is now disbanded. McCreery's negatives still have not been returned to him. Lt. Johnstone said he does not have clearance to return them until all the cases involving the photos have gone throught the court system. Negatives must be used rather than prints, he said, because prints could be touched up. McCreery cannot sue the State for the return of the negatives because of a stringer contract he signed with the AP signing over ownership of the negatives. The AP chose not to sue for the return of the images, and McCreery has not been called to do another job for them since the riots. The news organizations that were subpoenaed have not provided any unpublished or unbroadcast material to the State to date, and the case is now in the state Court of Appeals. It is likely that whichever side loses next will appeal to the state Supreme Court, prosecuting attorney Phillips said. Holmes said he thinks his editors made the right decision in witholding the paper's negatives. The Lansing State Journal stood by its policy not to sell reprints of unpublished photos. The newspaper rejected a previous offer by the prosecutor to purchase reprints. "If we'd done the wrong thing, we'd be sorry," Holmes said. "I'm amazed [the prosecutors] pushed it so far." Bibliography BOOK Patterson, Philip and Lee Wilkins. INTERVIEWS Holmes, Chris. Telephone interview. 9 Dec. 1999. Johnstone, Tom, Lt. Telephone interview. 9 Dec.
1999. McCreery, David. Telephone interview. 9 Dec. 1999. Olds, David. Telephone interview. 9 Dec. 1999. Phillips, Allie. Telephone interview. 9 Dec. 1999. Taran, Judith. Telephone interview. 9 Dec. 1999. Walters, Ed. Telephone interview. 9 Dec. 1999. MAGAZINE Hale, Donna. WEB SITE www.ci.east-lansing.mi.us/riot/index.htm |
