Freedom of the Press and Terrorism
Early in the morning of 28 February 1993, a convoy carrying agents from the United States Bureau of Alcohol, Tobacco, and Firearms set out for a staging area near Waco, Texas. Around 8:00 A.M. the ATF coordinated with a Texas National Guard military helicopter unit. Their mission was to enter the Mount Carmel religious compound and arrest members of the heavily armed Branch Davidian sect who were inside. The ATF mission depended on surprise. Field commanders were ordered to cancel the raid if secrecy was compromised.
Shortly after 9:00 A.M., the ATF agents boarded two cattle trailers and headed for the compound. The Branch Davidian leader, a young man named Vernon Howell, alias David Koresh, was waiting for them. He knew the agents were coming. He had prepared a deadly response. “What's going on?” Koresh hollered from the doorway. “Police! Lay down!” the agents yelled back.
Gunfire burst from inside the compound, fire from semiautomatics equipped with hell-fire switches. The ATF fought back but were outgunned. When the shooting stopped, four agents and many Branch Davidians lay dead. Then began a siege, broadcast into the living rooms of millions around the world, until the gruesome end, two months later, when a fire started by the Davidians burned alive more than 100 adherents and their children.
How did Koresh find out about the ATF raid? The previous day, over the objections of law enforcement, the Waco Herald Tribune published the first in a series of in-depth articles about the Branch Davidian cult titled “The Sinful Messiah.” The morning of the raid, the Tribune published a second piece in the series. Through its own investigations, the Tribune had learned that the Davidians possessed a lot of heavy weaponry and were said to be subjecting the children to sexual and other forms of child abuse. A vice president of the Tribune'? parent organization contacted the ATF and learned about the planned raid but had been requested to hold the information secret.
Koresh found out about the newspaper article. He told other Davidians that the authorities would be coming.1 On the day of the raid, other media activities alerted him to the time. A caravan of three media vehicles drove to the Mount Carmel compound and parked close by, in plain view. Two media vehicles drove up and down the road past the compound, attracting attention. Then the ATF agents started out for the compound in the cattle trailers. A television vehicle, displaying all its prickly antennas, followed them. A cameraman employed by KWTX television was stationed in the vicinity of the compound. A mailman stopped to talk to him. “Is something going to happen?” the mailman asked.
The cameraman told him there was going to be a raid on the compound, that agents were loading up at an air strip and that helicopters would be involved.2 The mailman was David Jones, nephew of Koresh's wife. Jones drove immediately to the compound and relayed the information to Koresh. Koresh knew what was happening, and he knew when it was going to happen because of these actions by the media. The secrecy upon which the raid depended was compromised. A lot of people died.
The media actions in the Waco raid have important points of similarity with the 1980 seizure of the Iranian Embassy in London by Iranian dissidents. In the Iranian case, after the terrorists killed a hostage, the Special Air Services of the Royal Air Force (SAS) descended upon the Iranian Embassy. British ITV broadcast the assault in real time, destroying the element of surprise and placing the lives of the SAS team in jeopardy.3 Also analogous is a revelation by a CNN (Cable News Network) reporter, live on television on 23 February 1991. The reporter broadcast the identity of American forces involved in an artillery duel with Iraqi forces. The information led easily to the deduction that the Eighty-second Airborne was positioned for a flanking attack, a detail the American military had taken pains to conceal. “This stinks,” General Schwarzkopf griped then. “Newsweek'just revealed our whole battle plan.”4
Together, these examples illustrate paradigmatic concerns about media coverage of terrorist incidents: premature or real-time reporting may endanger life; media actions at the scene of a terrorist incident may interfere with law enforcement management of terrorist incidents; irresponsible reporting encourages terrorists. Before discussing what instruments, if any, are available to enable law enforcement institutions and press organizations to better discharge their separate mandates during outbreaks of political violence, it is useful to consider how terrorism and the press interrelate.
Terrorism and the media live in a symbiotic relationship.5 Terrorism is an important means used by weak political causes to gain access to the public agenda. Through a theatrical display of horror and spectacle, terrorism enables a weak political message—one that could not otherwise attract a broadcast audience—to exert “a strong psychological impact upon a vast audience.”6 The hope of obtaining publicity for the terrorist's anemic political cause is an important cause of many terrorist acts. By notoriety, the terrorist organization hopes to gain adherents to the terrorist's cause and advance the priority of that cause on the public agenda. Terrorism could not exist without the mass media in its present-day form. During the seizure of the United States Embassy in Tehran in 1978, “students in the Embassy would frequently schedule ‘events’ to meet satellite and nightly news broadcast deadlines in the U.S. Iranian officials indicated this was how they planned to turn the American people against the policy of their own government.”7
Modern mass media is a hungry machine that demands a constant supply of news. Because of the pictorial values, television in particular responds to sensationalism, and for whatever reason, terrorism's threats and bloody acts are sensational. A modern television news organization is a voracious carnivore that demands a fresh piece of sensational meat every hour of every day.8 The massacre or threat to massacre innocents satisfies the craving of media organizations for spectacular material.
While Canadian and American mass media portray terrorist incidents in the same sensational manner, Canada and the United States have actually had very different experiences with terrorism over the past thirty years. Most terrorist attacks against Canada have taken place in Canada, whereas most terrorist attacks against the United States have taken place on foreign soil. Most terrorist attacks against the United States have as their goal some change in American foreign policy; few terrorist attacks against Canada have this as their goal.9 The United States has been the victim of many “state-sponsored” terrorist attacks, whereas Canada has been the victim of very few such attacks.
Canadians and Americans share similar perceptions of the modern-day terrorist. The first type of terrorist is the “home-grown” or deranged terrorist, examples of which include certain fringe political groups like animal rights activists, certain of the militia groups, and individuals with a difficult-to-understand ax to grind or message to preach (e.g., the Unabomber). The second type of terrorist is the “megaterrorist,” who uses increasingly violent means to accomplish political ends. Canadians and Americans view these actors as foreign terrorists. A recent example of this form of terrorist attack was the World Trade Center bombing.
International terrorism has been declining steadily for the past ten years as measured by number of incidents. However, the severity and lethality of incidents have been increasing.10 Accordingly, the shock value and sensationalism upon which terrorism feeds is mushrooming. We appear to be moving into the age of “megaterrorism,” where a small number of terrorist organizations, by threatening or committing hugely violent acts, may hope to reorder the priorities of the community of nations. The bombings of the World Trade Center and Oklahoma City federal office building, which killed or injured hundreds of people, and the attack against the Tokyo subway may not adequately foreshadow the future of megaterrorism. Better may be the image of a terrorist carrying a nuclear weapon to Grand Central Station in a briefcase, hiding it, and contacting news organizations and authorities before making threats and demands.
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The greater the violence or threat to wreak megadestruction, the greater the spectacle, and hence a deepening interest of news organizations in the event. It is also worrying that the image of threatening megadestruction— of an evil genius holding the world for ransom with high-tech strategies or nuclear weapons—seems more and more to inhabit popular culture. The villains in Batman and James Bond-type thrillers resonate deeply in mass culture and in the psyche of megaterrorists. These modern culture images may also foretell our future. If this be right, even greater attention needs to be concentrated on the interdependency between terrorism's hideous spectacle and its parasitic dependence on modern mass media.
Some law enforcement institutions have voiced concerns that the self-appointed role of mass media serves to propagate terrorism and makes terrorist incidents harder to manage. They refer to the “contagion effect” by which terrorists deliberately use the media to command publicity, spread their message, and gain a following.11 There are other perspectives. Just as real-time reporting can yield strategic information to terrorists, so too the media cameras and real-time reports can and do yield valuable operational information to law enforcement. Law enforcement institutions use the media to propagate disinformation, hoping to lull the terrorist into a false sense of security that may yield strategic opportunity.12 Media people are frequently first at the scene of a terrorist incident; it becomes impractical to exclude them. Some terrorists trust certain press personalities and seek to involve them as intermediaries in an incident. A committee of the Senate of Canada found that lack of police sophistication in dealing with the press at the scene endangered lives.13 The presence of media at a terrorist standoff may act as a safety valve: terrorists may be satisfied that their cause has been sufficiently aired that no purpose would be served by further acts of violence or prolongation. Media coverage may reassure the public that the authorities are in control of the situation.14 Media coverage may discourage terrorist attacks by demonstrating the increasingly firm resolve of the international community not to give in to terrorist demands at virtually any price—teaching that terrorism is futile and suicidal.
The democracies are committed to vigorous operation of a free press. Citizens in a democracy can only exercise the precious rights and responsibilities of self-government if they have sufficient information about the challenges of governance.15 Modern mass media, particularly television news, is the most powerful communications apparatus in history. Television news has radically altered citizens' understanding of governance and forever reconfigured the democratic process. Any unwarranted regulation of modern mass media, particularly television news, is full of peril for the operation of democracy.
Herein lies a paradox. Some, like former British Prime Minister Thatcher, see publicity as the “oxygen” of terrorism and argue that “television must find ways to starve the terrorist … of the oxygen of publicity.”16 Others think the media are unwitting accomplices in projecting a state of abnormality, which is the object of terrorism, and urge the media “not to assist unthinkingly in that objective.”17 Israel's former Prime Minister, Yitzhak Rabin, was keenly alert to the challenges involved in balancing these perspectives. A great proponent of the democratic commitment to a free press, he was still capable of urging a sense of responsibility on its operatives. “I saw today's headlines about the stabbing of several youths [by terrorists],” Prime Minister Yitzhak Rabin said on public television news. “They were three times the size of the headlines in the papers at the outbreak of the Six Day War. Even the media have a role in calming the people.”18 Prime Minister Rabin's hope that in a democracy it is possible to inculcate a sense of responsibility in the media by dialogue, urging, and persuasion is a crucially important theme, to which I shall return.
Leaving aside terrorism's violent methods, it is undeniable that terrorism seeks to convey a grievance or political message. In a democracy, terrorism's political message is but one political proposal among many. In principle the democratic commitment to freedom of expression and freedom of the press must allow broadcast of such messages. Prior restraint or regulation of editorial choices cannot easily be justified.19 Democratic governance rests on consent of the governed. The consent of the governed must be informed by knowledge of all political proposals.
The problem is not unlike the challenges posed to the democracies by the rise of private militias within their body politic. The militias are motivated by the belief that the system of government has gone astray. Their sentiments and messaging are strongly antigovernment. They inculcate an ethic that does not shrink from violent action to do something about the government, if necessary. Violence is part of the means contemplated by the militias; it is not their raison d'etre, which is political change. Notwithstanding the military means to which militias operating in the democracies are prepared to resort, their predominant raison d'etre is to condemn what they see as government abuses and to “explore ways to thwart such egregious conduct.”20
The democracies have fundamental commitments to the freedoms of thought, speech, and association.21 These core undertakings protect the existence of groups, like the militias, that advocate violence, among other things. In a democracy constitutionally committed to freedom of thought, speech, and association, the militias must have a constitutionally guaranteed right to exist.22 It no more lies within the constitutional power of the United States or Canada to silence the militias by proscribing their existence than it would to forbid the existence of a new political party.23 Outlawry of the militias does not become any more legitimate because it is annexed to the fight against political violence and terrorism. This is not to say that particular methods and practices of the militias cannot be proscribed, for example their inculcation of military training or their possession of weaponry.24 The core political rights of the militias must be protected in a democracy, but this does not extend to every mode or method by which the militias propose to operate.25
As with the core constitutional rights of the militias to exist, the press has core constitutional rights to gather and report on newsworthy events, including politically motivated acts of terrorism.26 Although the press has the right, as do all members of the public, to be present at newsworthy events, news organizations have been relatively unsuccessful in advancing a constitutionally protected right of access superior to that of the public. In Pell v. Procunier27 journalists and prison inmates challenged the constitutionality of a California regulation prohibiting the press from interviewing specific individual prisoners. In rejecting the challenge, the United States Supreme Court stated: “It is one thing to say … that government cannot restrain the publication of news emanating from [certain] sources. … It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally.”
The question of access to theaters of military operations is obviously difficult and important during military operations. The U.S. military and U.S. press have worked at their modes of interaction during military operations for over 220 years, including resorting to legal action for clarification of the ground rules. While in theory under the rulings in the Richmond and Globe newspaper cases the press have a right of access to the battlefield (a right that, for procedural reasons, has never been sanctioned by any court), the broad theme struck in Pell v. Procunier, that the government may justify restrictions on that access, is consistently apparent in all relevant cases.28
Publication rights are more jealously protected. A heavy burden of justification is imposed on governments seeking to enjoin press organizations from publication of, for example, classified military information already in their possession, a burden that the governments of the United States and Israel have been unable to meet when they tried.29 Justice Black rejected the argument that publication should be enjoined in the interests of national security; Justice Brennan ruled that prior restraints can only be overridden when the nation is at war. Justice Black stated that the intended publication of the Pentagon Papers by the New York Times was in the spirit that the American Founders intended—disclosure of the workings of government so that the body politic could understand what events gave rise to the Vietnam War.
Similar protections of speech and publication have been upheld in Europe under Article 10 of the European Convention on Human Rights. A Spanish ban on publication of an opposition MP's criticisms of the government's operations against terrorism was held to be a violation of freedom of speech by the European Court of Human Rights (ECHR) as not being “necessary in a democratic society.”30
Of course, free press and free expression rights are not absolute. The European courts have recognized that some bans on publication are justified as measures designed to devalue terrorist activity and to foster public disdain toward terrorist groups. An Irish measure empowered ministers to prohibit broadcasting of “any particular matter or any particular class of matters” that included interviews with spokespeople of the Sinn Fein and the Provisional Irish Republican Army; the Irish Supreme Court upheld the ban.31 O'Higgins C. J. explained for the Court that “the Minister genuinely believed he was dealing with an evil and dangerous organization” and was justified in banning their publication.32
The challenge for the courts in these cases is to find an appropriate balance between the rights of expression and of the press, and national security exigencies. Prime Minister Netanyahu portrayed this challenge as a tightrope act in his provocative book Fighting Terrorism: “[Democracies are destined to wander to and fro between the poles of too much liberty and too extensive a security effort, walking the fine line between security and freedom. But so long as the tension between these two poles is maintained, without one extreme becoming the permanent fixation of the society and its ruin, the democracies can hope to have the best of both, remaining at once free and secure.”33
The Canadian Supreme Court is quick to point out that there are limits to free speech and free press guarantees.34 From this perspective it is easy to appreciate that the fact the press enjoys core constitutional rights of access and publication does not mean that all operational means and methods the press may choose to adopt are constitutionally insulated from governmental regulation. It is hard to see that the constitutional commitments of the democracies, or their spirit in the decided cases in the United States, Israel, Europe, and Canada, entitle the press to report in ways or by means that seriously endanger life or interfere with law enforcement efforts to bring a terrorist incident to a peaceful resolution. It is more likely that certain narrowly tailored regulation of the press directed to preservation of compelling interests of life and security can be demonstrably justified in the sense required by constitutional law in the democracies.
The constitutional issues are interesting and important, but it may well be that the private law is the more important regulator of egregious media conduct.35 In Risenhoover v. EnglancP36 the Texas District Court accepted the legal proposition that news organizations have a duty not to warn dangerous suspects, like the Branch Davidians, of an impending law enforcement raid, either intentionally or negligently, and that news organizations must exercise some degree of caution to avoid compromising the secrecy of an impending raid if likely to cause harm to law enforcement personnel or others. It may well be that Texas news organizations will be required to compensate the estates of the ATF agents killed in the ill-fated attack at Waco under this standard. In any event, the District Court allowed the plaintiff's negligence suit based on this theory to go forward to trial, even over an asserted First Amendment hurdle. Like all others, the Court ruled, the press has the duty not to interfere with a law enforcement officer during the course of his or her responsibilities.
Ultimately, the question as to how media and law enforcement institutions should mesh their operations during outbreaks of political violence is unlikely to be satisfactorily answered in a law court. Each institution has large-scale, important, multidimensional mandates and operating procedures; each is constitutionally protected; each enjoys a large measure of public trust; each operates within an increasingly suspicious public environment; each is well funded and politically powerful. Law enforcement and the press are mutually interdependent. Law enforcement will have difficulty discharging its mandate if the public perceives it as overly or aggressively secretive, or if, on this ground, the press erodes its credibility with an increasingly skeptical public. The press depends on law enforcement to provide it with grist for its daily milling of spectacle. The points of interaction between law enforcement and the press are too multitudinous and subtle for open-textured constitutional and private law legal norms to act as a primary regulator of their relationship.
Progress on managing the government-press relationship better is more likely to come with less structured interchanges between the two institutions than what a law court offers. More sophisticated and self-directed protocols for meshing interaction are required. This is what makes Prime Minister Rabin's attitude toward the press so instructive. Prime Minister Rabin saw the Achilles' heel of the press clearly—its addiction to sensationalism to satisfy its need to sell newspapers.37 Prime Minister Rabin cared too deeply about the moral fiber of the Israeli people and Israeli democracy to be above urging the press toward greater responsibility and commitment to the national interest, or criticizing the press when he believed this dimension was missing from their reporting.38
The most important weapon the democracies have against international terrorism is the consistency with which they demonstrate that resort to terrorist tactics will result in the terrorist group being ostracized and its cause or grievance discredited.39 If resort to terrorism consistently produces bad political results for terrorist groups, the incentives to use terrorism as a political means are eroded. Paradoxically, governmental authority in the democracies is powerless to command that resort to terrorism will not be favorably portrayed by the media. Consistent control of editorial content is incompatible with democratic governance. Again, this is why Prime Minister Rabin's use of his prestige, and that of his office, to urge the press toward an ethic of responsibility is so crucially important.
This sense that government and the media need to understand each other, to dialogue, to work out better modes and methods of interaction, and to share their perspectives leads naturally to a search for techniques of coordination. The most moderate of such techniques would see media organizations adopt professional codes or guidelines concerning coverage of terrorist activities.40 The codes would have to address such issues as live coverage, contact with terrorists, media as intermediaries, media activities within police or military perimeters, propagandistic portrayal of terrorists, identification of terrorists and hostages. Some of these issues should have more or less ready-made baselines. It is hard to see, for example, that other than extraordinary considerations should move press organizations to unwittingly broadcast strategically important information. It is difficult to think press organizations would be anxious to act as intermediaries, or to fail to caution their reporters about contact with terrorists, especially given the intensive training law enforcement organizations devote to the art of negotiation.
Just as media organizations need to think about and perhaps structure their responses to terrorist incidents, so do governments and law enforcement organizations need to design better protocols for interaction with the media. Appointment of a skilled, senior, and credible media relations officer, with operational knowledge of the situation, is likely to assist smooth meshing of law enforcement and media institutions at the point of contact. A senior media relations officer could facilitate direct connections between the media and police operatives. If, for example, it is decided that the press is going to speak with the terrorists, the police may be able to offer perspectives on what to say and what not to say from a law enforcement point of view. The establishment of a briefing area close to the site and extensive after-the-incident debriefing are likely to be beneficial and lead to better and more coordinated relations. As the Canadian Senate committee noted, “police must realize that the media does form an integral part of any police strategy to handle a terrorist incident.”41
This is, in fact, very much what happened in Australia following the bombing of the Sydney Hilton in 1978. A Protective Security Review recommended that “rather than imposing] information control on the media, it is preferable to foster close liaison between government, police, and the media in an effort to establish guidelines which would operate in relation to a crisis incident.”42 As a result, reports of terrorist incidents would only be allowed from central briefing points, and “at no stage would [the media] be able to collect information independent of that received from official media releases.”43 Whether the recommendations advocate too-strict control is the point worth debating in light of experience.
Of course, media and law enforcement institutions pursue very different mandates and objectives. Any coordinating machinery must be respectful of these widely differing roles. Otherwise, attempts at coordination will falter on the healthy bias a free press always has against cooperation with government, and that law enforcement has against meddlesome interlopers. Should law enforcement and the press be unable to mesh their separate mandates without excessive friction, lawmakers will be faced with ever more insistent calls for giving the national security interest priority over the access and publication rights of media. This would be an unfortunate failure of responsible self-regulation, and probably unhelpful to either the democratic process or the ability of a free press to carry out its mandate. There are precious few cases where the courts have so much as suggested they would inflate news organization access rights beyond those enjoyed by the public at large. The public's rights are always subordinated to the operational requirements of law enforcement. While egregious incidents of concealment have enabled the courts to carve out important publication rights for the press, it seems extravagant to think that these rights are any greater than, or even as great as, would be produced by a serious dialogue between responsible law enforcement and press organizations, especially if those organizations pursue the discussion energetically and self-interestedly, with a view to protecting their separate mandates.
NOTES
1. Koresh's actions were known to the ATF from the activities of an undercover operative, Robert Rodriguez. Rodriguez operated from a house across from the compound. He visited the compound on several occasions, with a mission to find out about the physical layout of the compound and the habits of its occupants. Rodriguez managed to gain access to Koresh inside the Mount Carmel religious compound and establish a relationship with him. See Risenhoover v. England et al., 936 F. Supp. 392 (U.S.D.C. Tex., 1996).
2. Affidavit of Dick DeGuerin and Jack Zimmerman: Risenhoover v. Englandet al., p. 43 and n. 13. The cameraman, Jim Peeler, deposed only that he replied “It might” to the mailman's question whether something was going to happen.
3. A. H. Miller, “Terrorism, the Media, and the Law: A Discussion of the Issues,” in A. H. Miller, ed., Terrorism: The Media and the Law (Dobbs Ferry, N.Y.: Transnational Publishers, 1982), 28. There is controversy as to whether ITV broadcast in real time or with a two-minute delay; in either case the possibility of relaying strategic information to the terrorists inside was present.
4. H. Norman Schwarzkopf, It Doesn't Take a Hero (New York: Bantam Books, 1992), 440, 459.
5. See generally Miller, “Terrorism, the Media and the Law,” 13; but see Jon B. Becker, The News Media, Terrorism, and Democracy: The Symbiotic Relationship between Freedom of the Press and Acts of Terror (Los Angeles: L.A.S.D., 1996).
6. R. A. Friedlander, “Iran: The Hostage Seizure, the Media, and International Law,” in Miller, Terrorism: The Media and the Law, 58.
7. Edward W. Said, “Inside Islam,” Harper's, 19 January 1981, 25.
8. The remark is attributed to ABC political reporter Sander Vanocur. See Friedlander, “Iran,” 59.
9. Canada, Senate, Terrorism: The Report of the Senate Special Committee on Terrorism and Public Safety [First Report] (Ottawa: Supply and Services, June 1987), 12.
10. There was a recorded high of 666 terrorist incidents in 1987, contrasted with a low of 321 incidents in 1994. Several reasons are cited as responsible for the trend: vigorous antiterrorism policies by governments, the fall of the Soviet Union (a major supporter of terrorist organizations), and the Middle East peace process. See Center for National Security Studies, Recent Trends in Domestic and International Terrorism (26 April 1995).
11. Bethami A. Dobkin, Tales of Terror: Television News and the Construction of the Terrorist Threat (New York: Praeger, 1992), 18; Yonah Alexander, “Terrorism, the Media, and the Police,” in Robert H. Kupperman and Darrell M. Trent, eds., Terrorism: Threat, Reality, Response (Stanford: Hoover Institution, Stanford University Press, 1979); R. P. J. M. Gerrits, “Terrorists' Perspectives: Memoirs,” in D. L. Paletz and A. P. Schmid, eds., Terrorism and the Media (Newbury Park, Calif.: Sage Publications, 1992), 32. For a contrary view see R. G. Picard, “News Coverage and the Contagion of Terrorism,” in Doris A. Graber, ed., Media Power in Politics, 3d ed. (Washington, D.C.: Congressional Quarterly, 1990), 315. Picard cites the absence of data supporting the theory and states that “[n]o single study based on accepted social science research methods has established a cause-effect relationship.”
12. This is what Scotland Yard did during the seizure of the Iranian Embassy in London in 1980. See Miller, “Terrorism, the Media, and the Law,” 27-28.
13. Excerpts are reprinted in Yonah Alexander and Richard Latter, Terrorism and the Media: Dilemmas for Government, Journalists, and the Public (New York: Brassey's United States, 1990), 119.
14. Canada, Senate, Terrorism: The Report of the Second Special Committee of the Senate on Terrorism and Public Safety [Second Report] (Ottawa: Supply and Services, June 1989), 27-28.
15. Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459 (per Cory J: “The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well being”).
16. Quoted by Barry Rosen, “The Media Dilemma and Terrorism,” in Alexander and Latter, Terrorism and the Media, 57.
17. Sir John Hermon, “The Police, the Media, and the Reporting of Terrorism,” in Alexander and Latter, Terrorism and the Media, 40-41.
18. Yitzhak Rabin, The Rabin Memoirs (Berkeley: University of California Press, 1996), 368.
19. In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 878 Chief Justice Lamer discussed the common law discretion to order a publication ban in the context of assertions that reporting would affect the fairness of criminal proceedings. He held that a discretionary power cannot confer the power to infringe the Canadian Charter of Rights and Freedoms. He further held that “a publication ban should only be ordered when two things are established: (1) that the ban is necessary to prevent a real and substantial risk [to the fairness of the trial], because reasonable alternatives measures will not prevent the risk; and (2) that the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by it.” In R. v. Bernardo, [1995] O.J. No. 1472 (Quick Law Database), on the application of a murder victim's family, the Ontario Court General Division held that portions of videotapes containing scenes of sexual torture and murder committed by Bernardo were not to be shown to the public, including the media. The court considered that a limited access would not affect Bernardo's right to make full answer and defense and that “the harm that flowed from the public display of the videotape evidence far exceeded any benefit that would flow from public exposure.”
20. Joelle E. Ploensky, “The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train,” 144 U. Pa. L. Rev. (1996), 1593.
21. Canadian Charter of Rights and Freedoms, sees. 2(b) and 2(d): “Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; … (d) freedom of association.”
22. Ploensky, “The Rise of Private Militia.”
23. As long ago as 1961, Professor G. Abernathy explained the instrumental uses of the freedom of association in these terms: “probably the most obvious service rendered by the institution of association is influencing governmental policy. Concerted action or pressure on governmental agencies has a far greater chance of success than does the sporadic pressure of numerous individuals acting separately.” See M. Gleen Abernathy, The Right of Assembly and Association (Columbia: University of South Carolina Press, 1961), 242.
24. Ploensky, “The Rise of Private Media.”
25. Reference Re Public Service Employees Relations Act (Alberta) (1987), 51 Alberta Law Reports, (2d) 97 (S.C.C.) is helpful in reaching this conclusion. Mclntyre J. there stated: “I interpret freedom of association in s. 2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone. But, since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.”
26. Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, 429-30 (“[T]he freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference”); Canadian Broadcasting Corp. v. New Brunswick (Attorney General), Rice and Carson, S.C.C. 31 October 1996 (“Essential to the freedom of the press to provide information to the public is the ability of the press to have access to this information”). The Emergencies Act, R.S.C. 1985, c. 22 (4th supp.) would have to be tested against this standard. Sec. 16 of the Act describes a public order emergency as an emergency arising from threats to the security of Canada; s. 27 describes an international emergency as an emergency involving Canada that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence. Both of these situations could embrace terrorism. Included in possible orders that the Governor in Council may make in response is “the assumption of the control … of public utilities and services” (s. 19-1-c), which could include the Canadian Broadcasting Corporation, or regulation or control over any specified industry or service (s. 30-1-a). In the United States, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980) and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) established a three-pronged test for determining whether the media has a right of access to government information. The claimant must establish that the information they seek has historically been open to both the public and the press; the right of access must play a significant role in the functioning of the process in question and the government as a whole; the claim must survive government attempts to show a compelling governmental interest to deny access.
27. 417 U.S. 817 (1974). See also Halquist v. Dept. of Corrections, 783 P. 2d 1065 (Wash., 1989) (no special right of access to videotape execution); KQED v. Vasquez, No. 90-CV-1383; Garrett v. Estelle, 556 F. 2d 1274 (5th Cir. 1977), cert. denied, 483 U.S. 914 (1978) (no First Amendment right in press to broadcast executions. Even though failure to protect press right to gather news would jeopardize freedom of the press, this right is not absolute); Dane Drobny, “Death TV: Media Access to Executions under the First Amendment,” 70 Wash. U. L. Q. (1992), 1179.
28. Richmond Newspapers Inc. v. Virginia; Globe Newspaper Co. v. Superior Court; Brian DelVecchio, “Press Access to American Military Operations and the First Amendment: The Constitutionality of Imposing Restrictions,” 31 Tulsa L.J. (1995), 227 (“[C]an the government restrict the freedom of the press to cover military operations? This comment answers this question affirmatively, demonstrating that operational security and troop safety justify restrictions on the press' right to access military operations and publish information obtained from those operations”). The author reviews the history of interaction between the American military and the American press, as well as First Amendment doctrine, to support this conclusion.
29. New York Times Co. v. United States, 403 U.S. 713 (1971), 91 S.Ct. 2140, 29 L.Ed.2d 822, 1 Media L. Rep. 1031 (U.S.Dist.Col. Jun 30, 1971).
30. Castells v. Spain [1992] 14 EHRR 445, p. 476, para. 42.
31. The ban in Ireland was passed pursuant to s. 31 of the Broadcast Authority Act 1960. A similar ban existed in Britain under s. 29(3) of the Broadcasting Act 1981, adopted in s. 10(3) of the Broadcasting Act 1990. Both bans prohibit the BBC and the ITC from broadcasting any “matter or class of matter.” See C. Barwell, “The Courts' Treatment of the Broadcasting Bans in Britain and the Republic of Ireland,” 16 J. of Med. L. & Prac. (1995), 21.
32. The State (Lynch) v. Cooney, [1982] I.R. 337 (H.C.).
33. Benjamin Netanyahu, Fighting Terrorism: How Democracies Can Defeat Domestic and International Terrorists (New York: Farrar, Straus and Giroux, 1995), 46.
34. Canadian Broadcasting Corp. v. New Brunswick (Attorney General), Rice and Carson, S.C.C. (31 October 1996).
35. See Sandra Davidson, “Blood Money: When Media Expose Others to Risk of Bodily Harm,” 19 Hastings Comm.lEnt. L.J. (1997), 225, for a discussion on this point.
36. Risenhoover v. England et al. 936 F. Supp. 392 (U.S.D.C. Tex., 1996).
37. Rabin, Memoirs, 278: “I am sure that copy of that kind sells newspapers; I am not at all sure, however, that it is the most responsible kind of journalism or that it serves the national interest.”
38. Yoram Peri, afterword in Rabin, Memoirs, 368.
39. Canada, Senate, Terrorism [First Report], 11.
40. See, for example, CBS News Standards, which commits CBS to “continue to give [terrorist incidents] coverage despite the dangers of ‘contagion,’” to treating terrorists “with particular care,” and specifically provides that “we should avoid providing an extensive platform for the terrorist/kidnapper” and “there should be no live coverage of the terrorist/kidnapper.” Reprinted in Alexander and Latter, Terrorism and the Media, 139.
41. Canada, Senate, Terrorism [First Report], 114.
42. R. M. Hope, Protective Security Review Report (Canberra: Australian Government Publishing Service, 1979), 120. A similar directive exists in Germany, where Chancellor Kohl has stated that there should be no restrictions on freedom of the press because the German Press Council guidelines work fine. The Press Council guidelines direct the press to weigh the public interest of information against the interests of the victims and other people concerned and to generally exercise self-restraint without neglecting the general duty to inform. See Berliner Morgenpost, 20 November 1997.
43. J. J. Hocking, “Governments' Perspectives,” in Paletz and Schmid, Terrorism and the Media, 94.