We hear it so often-animal rights groups institute an animal seizure based on “their opinion” that the animals are being neglected or cruelly treated. Along with the ensuing seizure, area media outlets are invited to film the action, which you can be certain will be used as evidence, primarily in the court of public opinion, but possibly in a court of law.

[A July 2011 report states an increase in warrantless, illegal seizures of animals.] The media displays shocking pictures, which may or may not come from the seizure in progress (many are available on ShutterStock or IStock), that manipulate public opinion against the animal owner. These people, whose opinion has been manipulated by many times false or inaccurate reporting and photos/video, are the very ones who may just be on your jury should you face criminal or civil charges and granted a trial by jury. Many times, it is a case handled strictly by the animal control agency, as they are the administrator, enforcement, witness, prosecutor, judge and jury.

Considering these seizures are taking place on private property, there is a question as to whether the media is allowed to be present. To paraphrase an article by the Florida Bar Association, under the First Amendment, the media has the right to gather news from any source by lawful means, and it does not carry protection for reporters who commit torts (a breach of civil duty, excluding contractual duty owed to someone else) and crimes to “get the scoop,” or by practices of deception. The media, by implied procedure and varying federal, state and local laws, are to take care in getting the proper consent from the appropriate persons. However, this does not always happen, as they consider this newsworthy and their right to be present. You, the animal owner, are in shock from what is happening and the taking away of your animal(s). You don’t think about the media being present and your right to deny them access to your personal property. This is a big mistake to make, as you may be facing 2 different courts and summary proceedings, civil [used to get the animal’s out of the suspected harm’s way] and criminal [used to assess criminal penalties]. [The problem here is by the time you appear in civil court, the animals have been seized in many cases, which depending on your state statutes, may be illegal seizure.] You do have the right to tell them to get off of your property, and the right to expect them to honor this refusal of permission to be there.

Freedom of the press does not carry with it the right to trespass on private property. In fact, even when the media gains access without resistance, property owners may sue them after the fact, asking for damages for trespassing and invasion of privacy. In cases where the owner was present, the court must determine whether his silence, or failure to voice an objection, constitutes an implied consent. Is law enforcement permission, if the owner is not present, enough to allow the trespass is a question that many courts are asked to consider. One question that does arise is: Does the warrant include, and clearly state, that videotaping and photographing are allowed, and if so, by whom and is this clearly stated in the warrant? Another question is this: Would this violate state statutes on personal property rights and the protection thereof? Can someone else grant permission for another person(s) to enter upon someone else’s personal property? Does the state constitution award larger freedoms than the First Amendment?

Other courts have ruled that there is never an implied consent. In Rochester, NY, a local humane society investigator obtained a warrant for suspected animal mistreatment. He entered the residence, bringing with him three local television stations. Two of the news crews entered the residence along with the investigator, despite the objections of the homeowner. The story was broadcast all over the news for the evening. When the homeowner sued the media for trespassing, the New York Appellate Court held that “the gathering of news and the means by which it is obtained does not authorize, under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice."

According to the Reporters Committee for Freedom of the Press, RCFP, reporters should be familiar with the three types of venues: public forum, non-public forum public property, and private property. Private property can be seen in various forms. It can be a physical invasion of privacy, or merely a right “to be let alone.”  It can be an intrusion of the person’s seclusion, or an appropriation of their name or likeness, a public disclosure of private embarrassing facts, and publicity which places a person in false light. The media must be careful in their guidelines and practices to avoid suits against them. When they are not, legal action may be the result. In the 1971 case of Dietemann v Time Inc., the Federal Court ruled that “the news gatherer is liable when he invades a "sphere of privacy" which the person reasonably believes to be off limits to the news media.”

Publicly visible areas are questionable and are not immune to suit against the media. In a 1986 case, Huskey v. NBC, the court ruled against NBC’s claim that “filming a person in a publicly visible area cannot give rise to an intrusion claim. In the 1999 decision of Wilson v. Layne, the court ruled that “the journalist could be exposed to similar liability were a search victim to allege that the police and the journalist acted jointly or conspired in planning an illegal search.”

The courts typically give the highest level of protection from invasion of privacy to a person’s home and property, and consider photographing or videotaping a person or his property in a private place as potential invasion of privacy. Invasion of privacy is a tort, a civil wrong, and can be punishable by trial, as well as potential claims for compensatory and punitive damages. In a controversial case in the State of Texas, this is an issue that will soon be addressed.

Written and researched by Debi R***