Access to Private Property

You may wish to access another's private property in order to gather information to publish online. However, while there are (rare) circumstances in which the law will condone your entry onto private property without permission, in general you do not have any right to enter the private property of others without their consent. You should read this section in conjunction with the section on Trespass in order to understand the issue of consent.

Types of Private Property

Residences: The term "private property" encompasses a wide variety of places, from homes to businesses open to the public. Courts are highly unsympathetic to those who try to gather news in private homes without consent, and if you enter a private home without permission, you may be liable for invasion of privacy, trespass and, in certain cases, intentional infliction of emotional distress.

In the 1940s, the Supreme Court took on the issue of "company towns" with regard to the First Amendment. Although the company town was private property owned by the company, the fact that it had been opened up to use by the public generally made it subject to the constitutional requirements of the First Amendment. Marsh v. Alabama, 326 U.S. 501 (1946).

Today, there are fewer company towns; however, private, gated residential communities may occupy a similar niche. Visitors seeking access to a private residential community must usually announce themselves at the gate or receive permission from the development's security guards in order to enter. It's often a wise idea to seek permission before entering such a community. But even if you do not express permission, your right to access will be strongest if the private residential community opens its gates to the public at large. See the section on Access to Public Property in this guide for more information.

Businesses: If you try to access businesses that do not open themselves up to the public, you may be liable for trespass. However, as a member of the public you will be able to access businesses open to the public without fear of liability. Your right of access does not necessarily translate into a right to gather information while you are there. The business has given you consent to use the premises as a patron, and your actions need to be within the scope of that use.

For example, a restaurant consents to your presence for you to enjoy eating a lovely meal in the company of good friends. In this scenario, taking notes about the food, ambiance, and service may be fine, whereas approaching other diners for interviews or for photographs likely oversteps the scope of the restaurant's consent, and you could be liable for trespass. See the Trespass section in this guide for more information. Note that you may only access the areas of the business that are open to the public. Continuing our example, while you can enter a restaurant, you cannot go to the kitchen without additional permission.

Shopping malls have come to occupy a place in modern communities akin to the town square or main street and thus are arguably public, rather than private, in nature. But unlike the traditional public forum of a town square, these establishments are privately owned places of business. Since the Supreme Court's decision in PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), stating that there is no constitutional right to free speech in a private shopping mall, the law of access to shopping malls has largely been left to the states. State courts vary on the question of whether to allow access to shopping malls. Those that do find them to be public or quasi-public forums still note that owners may impose reasonable time, place and manner restrictions on expression, provided the regulations are content-neutral, narrowly tailored, and leave open sufficient alternative channels of communication.

If you want to go to a shopping mall and gather information, try to avoid disrupting business activities. For example, it would be better to approach people walking in the corridors of the mall, or in the food court, than to station yourself at the door of a store and attempt to talk to everyone entering or exiting.

Entering Private Property While Accompanying Government Officials

You may be invited by law enforcement or other government officials to accompany them while they perform their duties. These types of situations are called "media ride-alongs" and can be a great way to gather information about how public officials handle their work. However, ride-alongs may take you to events occurring on private property. The Supreme Court has held that accompanying police in their execution of an arrest warrant in a private home may make you liable for trespass. See Wilson v. Layne, 526 U.S. 603 (1999).

The Reporters Committee for Freedom of the Press has a terrific overview on how courts have treated trespass issues in media ride-alongs. The issue is complex. As a rule of thumb: if you are invited on a media ride-along and enter private property, you should get consent for your presence from the person in possession of the property. Additionally, you should note that depending on the circumstances, your presence may jeopardize an investigation. Thus, do not be surprised if your local law enforcement authorities prohibit media ride-alongs altogether.