Thoreau heartily accepted the motto, ‘that government is best which governs least’. Our forefathers braved treacherous oceans and alien lands emboldened by that belief, after enduring the Crown’s heavy hand invading and restricting their religious and personal lives. That is why, among the many freedoms embodied in our Constitution, the right to privacy was included in the Fourth Amendment to protect individuals from arbitrary intrusion by the state. The right has been fundamental to the establishment of a more tolerant society devoted to the principles of liberty and justice for all.
As the US Supreme Court has repeatedly emphasised, the principal object of the Fourth Amendment is to restrain government incursions into the private lives of individual citizens. The Warrant clause of the Fourth Amendment adds a further protection by interposing a detached and neutral judicial officer with authority to assess the weight and credibility of information provided by investigating law enforcement officers and thereby restrain their otherwise unbridled discretion.
The promise by the media to provide government officials with massive publicity and the public’s voracious appetite for ‘reality-based’ police shows are now threatening the protection of privacy guaranteed by the Fourth Amendment and the case law interpreting it. Two Federal Circuit Courts of Appeals, the Second and the Ninth, have recently taken affirmative steps to curtail the insidious practice of law enforcement officers entering the private property of individuals under investigation with television cameras in tow. In Ayeni v Mottola, 35 F 3d 680 (2d Cir. 1994, cert. denied, 514 US 1062 (1995), and Berger v Hanlon, 129 F 3d 505 (9th Cir. 1997), both courts held that a search of private property videotaped by commercial television cameras is unconstitutional, and the federal officers involved are not protected from suit or liability by qualified immunity. The Berger court further held that the media participants may be held liable in damages for violating constitutional rights for acting ‘under color of federal law’.
The authors of this article served as co-lead counsel in both of these cases.
Fourth Amendment jurisprudence has traditionally focused on reasonableness, and whether the action in issue is in furtherance of a legitimate law enforcement purpose. The actions of the federal officers in the Ayeni and Berger cases were not motivated by law enforcement goals, but were undertaken to create television entertainment and were, thus, patently unreasonable. As noted by the Second Circuit in Ayeni v Mottola, ‘A private home is not a sound stage for law enforcement theatricals.’
This article focuses on these pivotal decisions and the strong historical underpinnings upon which these holdings are based as well as the very real problems collaboration between the press and the police pose to individual privacy. This article will next consider the en banc Fourth Circuit decision in Wilson v Layne which refused to decide the Fourth Amendment issues resolved in Ayeni and Berger but nonetheless shielded federal officers from liability for bringing Washington Post reporters into a private home during an abortive attempt to effect an arrest pursuant to an arrest warrant. The article will then note the US Supreme Court actions in Berger and Wilson v Layne.
The Ayeni cases
The Ayeni case arose from a search in March 1992, by armed Secret Service Agents, of a credit-card fraud suspect’s home in Brooklyn, New York. The agents brought along a CBS camera crew on assignment for the programme ‘Street Stories’ to video and audiotape the search. They did so in spite of explicit direction of the Assistant United States Attorney in charge of the investigation ‘not to permit such an adventure’.
One of the agents wore a wireless microphone and provided a running commentary of the proceedings. The suspect, Babatunde Ayeni, was not at home, but his wife, clad only in a dressing gown, and their five-year-old son were present. Both were visibly shaken by the agents’ invasion.
and the presence of the large video camera. During the search, the CBS camera crew videotaped Mrs Ayeni and her son repeatedly, in spite of her objections, and focused close-up shots on the family’s personal belongings and documents. Regardless that no evidence of fraud was found, the wired agent, in an on-camera interview, expressed his belief that Babatunde Ayeni was guilty.
United States v Sanusi
Any discussion of the Ayeni case would be incomplete without reference to the underlying criminal matter. In the criminal case against him, Ayeni subpoenaed the videotape of the search from CBS. CBS moved to quash the subpoena on First Amendment and journalistic privilege grounds. US District Court Judge Jack B. Weinstein denied the motion and ordered CBS to turn over the tape, which had never been aired. He reasoned that the tape was material to Ayeni as a ‘window through which he could demonstrate to the jury … the government’s zeal to arrest him and its failure to produce any evidence after tearing apart his home’. The court further found the images of a cowering wife and child ‘gripping’ and likely to influence a jury in Ayeni’s favour. Judge Weinstein was so outraged at the constitutional violations and the fact that the Secret Service had disregarded the direction of the Assistant US Attorney in charge not to bring a commercial camera crew along on the search, he ordered the US Attorney ‘to bring this matter and the court’s opinion to the attention of the highest authority in the US Secret Service’.
The Sanusi opinion analysed the Fourth Amendment and the right to privacy it embodies, discussing the early English and US Supreme Court authorities defining the right as protecting ‘the sanctity of a man’s home and the privacies of life’. In statements extremely critical of both the agents and the CBS camera crew, the court cited the early abuses of the Crown, both through the use of general warrants and the writs of assistance used in the American colonies.
The court, in ordering CBS to produce the unpublished videotape of the search, stated:
‘That CBS trespassed upon defendant’s home and engaged in conduct, with the connivance of the government, directly contrary to Fourth Amendment principles … bears upon the court’s evaluation of CBS’s news gathering privilege. The First Amendment is a shield, not a sword. Even a reporter must accept limits on how far upon another person’s privacy he or she may intrude …’
Ayeni agreed to a deal with the government in which he pled guilty to attempted credit-card fraud and was sentenced to probation and a fine. The government’s case had been irreparably weakened by the Secret Service’s conduct in violating the Constitution and resulted in a ruling that the videotape of the search would be material exculpatory evidence in a jury trial likely to influence a jury toward acquittal. The government was fortunate the prosecution was not dismissed.
The District Court decision — Ayeni v CBS, Inc.
Mrs Ayeni and the Ayenis’ minor son, Kayode, then sued CBS, the CBS ‘Street Stories’ producer, Meade R. Jorgensen, US Secret Service Special Agent James Mottola, seven unknown Secret Service Special Agents and two unknown US Postal Inspectors. The Ayenis sought civil damagers for violation of their Fourth Amendment right to privacy and related common law torts, including trespass and infliction of emotional distress. The damage claim for violation of constitutional rights was brought pursuant to the 1971 Bivens decision by the US Supreme Court.
Special Agent Mottola, CBS and producer Jorgensen moved to dismiss the complaint under the doctrine of qualified immunity. They claimed that at the time of the search, the Fourth Amendment right to privacy asserted by the plaintiffs was not ‘clearly established’, and it was ‘objectively reasonable’ for them to believe their acts did not violate the Constitution. CBS asserted that its acts were protected because they were undertaken with the permission of the government.
US District Court Judge Jack B. Weinstein, the same judge as in Sanusi, disagreed. Judge Weinstein denied CBS’s and Jorgensen’s motion on the ground that as private parties rather than government officials, CBS and producer Jorgensen were not entitled to invoke any government immunity doctrine because they were acting merely as ‘agents’ of the government. Judge Weinstein denied Mottola’s motion on the ground that ‘well established Fourth Amendment principles’ prohibit.
government agents from allowing ‘a private citizen into a home to photograph for non-governmental purposes during the execution of a search warrant …’ The fact that no prior case law had so held was deemed immaterial by the court. ‘Rather, “[i]t suffices that the [agent] be aware of general well-developed legal principles.”’
The District Court drew the following legal principles from the Fourth Amendment and Supreme Court and other case law applying it, as well as federal statutory authority: that the Fourth Amendment (1) guarantees against unreasonable governmental intrusions into areas where citizens have a reasonable expectation of privacy, particularly the home; (2) ensures that when the government does enter private property, the interruption of privacy is minimised and that the search is closely tailored to the purpose of the warrant; and, (3) precludes private parties from searching and seizing private property unless they are officially aiding the government in the execution of the warrant.
Judge Weinstein found ‘Agent Mottola’s act of facilitating the CBS camera crew’s entry into the apartment and its filming of the search … was so far from then well-established acceptable constitutional behaviour that no case law precedent was needed to alert him to the fact that the execution of a warrant for the benefit of private persons violated the Constitution.’ The court compared Mottola’s acts to those of ‘a rogue policeman using his official position to break into a home in order to steal objects for his own profit or that of another’. The District Court also considered CBS’s videotaping to be an unconstitutional seizure of private images.38
The Second Circuit decision — Ayeni v Mottola
Mottola appealed to the US Court of Appeals for the Second Circuit. CBS and Jorgensen did not participate in the appeal after reaching a confidential settlement with the Ayenis. The Second Circuit, in a unanimous published opinion by Chief Judge Jon O. Newman, affirmed Judge Weinstein’s decision, reiterated his protection of the sanctity of Americans’ homes provided by the Fourth Amendment, and expanded the qualified immunity analysis. The Court of Appeals held that: (1) the Fourth Amendment prohibited Mottola from bringing the CBS camera crew into the Ayenis’ home; (2) the Ayenis had a clearly established right to privacy under the Fourth Amendment to be protected from such actions; and (3) Mottola could not have reasonably believed his actions were constitutional.
The Court of Appeals reasoned, based on traditional Fourth Amendment principles, that
‘ … law enforcement officers conducting searches under a warrant are limited in their conduct to either (a) actions expressly authorized by the warrant, or (b) such further actions as are impliedly authorized because they are reasonably related to accomplishing the search authorized by the warrant or accomplishing additional legitimate law enforcement objectives.’
Mottyola exceeded ‘well-established principles’ by bringing into the Ayeni home ‘persons who were neither authorized by the warrant to be there nor serving any legitimate law enforcement purpose by being there …’
The Ayeni decision was not based on the identity of the private intruders, rather on the intruders’ function and whether their presence was expressly or impliedly authorised by the search warrant. The fact that the intruders in Ayeni were the media, although material, was not dispositive, but served to further offend the court and the Constitution:
‘The unreasonableness of Mottola’s conduct in Fourth Amendment terms is heightened by the fact that, not only was it wholly lacking in justification based on the legitimate needs of law enforcement, but it was calculated to inflict injury on the very value that the Fourth Amendment seeks to protect — the right to privacy. The purpose of bringing the CBS camera crew into the Ayenis’ home was to permit public broadcast of their private premises and thus to magnify needlessly the impairment of their right to privacy.’
The issue of unlawful seizure by videotape of private images and by sound recording, as opposed to the search, was treated separately and concluded in the Ayenis’ favour. The Court of Appeals held:
‘We agree with the District Court that the video and sound recordings were “seizures” under the Fourth Amendment, and rendered the search far more intrusive than it needed to be.’
The matter was remanded to the District Court for further proceedings.
The Berger case
In Berger, the US Court of Appeals for the Ninth Circuit was asked to address a factual scenario similar to that in Ayeni, but also to reach issues directly involving the liability of the media under Bivens and common law torts. The Berger case involved a written agreement between Cable News Network, Inc. (CNN) and the Federal government allowing CNN to accompany US Fish and Wildlife Service agents during their search of a 75,000-acre Montana sheep ranch owned by Paul and Erma Berger, an elderly couple. CNN and its parent, Turner Broadcasting Systems, Inc. (TBS) ‘wanted footage of the discovery of evidence showing that Paul Berger was poisoning eagles, and the government wanted the publicity.’ The footage would be used for broadcast on CNN’s and TBS’s two cable programmes entitled ‘Earth Matters’ and ‘Network Earth’.
On 11th March, 1993, shortly before the search, Kris McLean, the Assistant US Attorney in charge of the investigation (and a defendant in the Bergers’ lawsuit), and CNN producer and correspondent Jack Hamann executed an agreement on CNN letterhead in which the US Attorney’s Office for the District of Montana agreed to allow CNN to accompany US Fish and Wildlife Service (USFWS) agents while they executed a search warrant at the Berger ranch. In return, CNN agreed to embargo any broadcast of the footage until the occurrence of one of several events, including resolution of the criminal case by plea bargain, instruction of a jury to avoid television, Mr Berger’s waiver of a jury trial, or the government’s decision not to bring charges.
In accordance with this agreement, CNN personnel attended and filmed a pre-search briefing and were made privy to confidential information, including the sealed search warrant, in violation of the Privacy Act and the Department of Justice’s own guidelines regulating prosecutors’ relations with the media. The government had earlier obtained sealed search and seizure warrants without disclosing the participation of CNN to the issuing Magistrate Judge.
The next morning, CNN personnel joined 21 armed agents and other law enforcement personnel, including AUSA McLean disguised as a federal agent, in a caravan of trucks to converge on the Berger ranch and execute the search warrant. The force was ‘large enough to take on Rambo’. Paul Berger had no criminal record, no history of violence, had never threatened the government, and was 71 years old, ill with emphysema and only recently released from the hospital at the time. His wife was 81 years old and also ill. Never mind, the onslaught made for good television.
CNN did not just ride along. They mounted video cameras both on the outside and inside of government vehicles and ‘documented every move made by the federal appellees’. They also wired USFWS Special Agent Joel Scrafford with a hidden CNN microphone that continuously transmitted live audio only to CNN technical personnel. At no time were the Bergers aware of CNN’s presence, that the cameras belonged to the media, or that Agent Scrafford was secretly recording them. AUSA McLean did not participate in the search. He was there to be interviewed by CNN for their upcoming cable programme.
Agent Scrafford not only recorded outside on the ranch grounds and inside outbuildings, he entered the Bergers’ home, which was explicitly excluded from being searched by the written limits of the search warrant, and recorded agents interrogating Mr and Mrs Berger.
Agent Scrafford was not content with executing the warrant as issued which authorised a search only by federal agents of ‘The Paul W. Berger Ranch with appurtenant structures, excluding the residence‘. Rather, Agent Scrafford told Mr Berger that the District Court had ordered the federal agents to search every building on the ranch. Agent Scrafford did not state that the residence was excluded. Agent Scrafford also informed Mr Berger that if he did not do as Agent Scrafford requested, Mr Berger would be ‘run … down to the lockup in Billings’.
After ten hours of searching, the agents did not find any evidence of poisoned eagles. Mr Berger was, nonetheless, charged with a number of felonies related to the killing of eagles; the government alleged that he used a pesticide to kill predators, including eagles, by applying it to sheep carcasses and that he had actually killed 17 eagles. The prosecutors reduced the charge to a single eagle during trial. Mr Berger was acquitted of all charges except the misdemeanour charge of using a pesticide contrary to its labelling.
Regardless, CNN broadcast both video footage and sound recordings from the search, including recordings made inside the Berger home, in a segment entitled ‘Ring of Death’. Correspondent Hamann introduced the segment by implying that Mr Berger had killed hundreds of eagles. The show was broadcast by CNN and TBS nationally and internationally at least ten times. The broadcast can be purchased today from CNN.
The Bergers sued AUSA McLean, the various federal agents, CNN and TBS, correspondent Jack Hamann, and CNN technical personnel present at the search in two complaints. The complaints, which proceeded on identical courses, sought civil damages for violations of the Fourth Amendment right to privacy under Bivens, violations of the Federal wiretapping statute, and related common law torts, including trespass, infliction of emotional distress and conversion, and sought an injunction against the media’s further broadcast of the illegally obtained video footage and sound recordings.
US District Judge Jack D. Shanstrom dismissed the complaints with prejudice and the Bergers appealed. In a lengthy, published, unanimous opinion by Circuit Court Judge Mary M. Schroeder, joined by Circuit Court Judge Andrew J. Kleinfeld and District Court Judge Rudi M. Brewster, the Ninth Circuit reversed Judge Shanstrom on all but the wiretapping, conversion and injunction claims. This discussion will focus on the portions of the Berger opinion that relate to the Fourth Amendment claims.
At the outset, the Berger court was not only asked to address the issue raised in Ayeni, whether the Federal agents were protected from suit and liability under qualified immunity; it was also asked to decide whether CNN had acted ‘under color of law’, which would render the media liable for constitutional violations under Bivens. The court’s response was clear and emphatic. Videotaping and recording by the media for commercial purposes during a government search on private property is unconstitutional, and neither the press nor the officers involved are protected by qualified immunity.
The Bergers’ situation presented a particularly egregious example of the problems posed by concerted action by the media and government; and the Berger court considered the extent of their mutual involvement material. The court did not, however, limit its holding to only extreme cases of joint action. It cited to and approved the Ayeni decision and noted another recent Ninth Circuit decision that had also approved Ayeni in recognising that the videotaping of searches for non law-enforcement purposes might render the underlying search unreasonable. The court emphasised the Ayeni court’s reliance on both federal statutory prohibitions against the participation in searches by unauthorised individuals and the needless magnification of the impairment of the right to privacy by publicising the search. The court further noted a Fourth Circuit decision denying qualified immunity to a federal officer who had brought a private individual along on a search of private property because the latter was acting solely for private purposes.
The Berger court noted, and distinguished, decisions by three other circuits that appear to differ in their approach to this issue, granting qualified immunity or finding the search reasonable where officers allowed the media to tag along. In one case decided by the Sixth Circuit, the search warrant authorised photography and videotaping. This fact alone did not appear dispositive to the Ninth Circuit, which focused on the non law-enforcement purpose of the recording in Berger, finding the publicity aspect of the media presence in direct conflict with protection of privacy under the Fourth Amendment.
Making explicit what had been implicit in Ayeni v Mottola, the Berger court addressed the media’s liability under Bivens for violating the Bergers’ Fourth Amendment rights. The media, as private parties, could be held liable only if they acted ‘under color of law’. The court employed the ‘joint action’ test enunciated by the US Supreme Court and concluded that:
‘the “inextricable” involvement of the media with both the planning and execution of this search, the government’s active involvement with the media’s news gathering activities, and the mutually-derived benefits, is more than enough to make the media government actors.’
Wilson v Layne and the fourth circuit
Simultaneous to the Berger case wending its way from the District Court in Montana through the Ninth Circuit, a similar case was proceeding from the Maryland District Court through the Fourth Circuit.
This case involved US marshals taking reporters and photographers from the Washington Post into private homes while effecting arrests. The marshals brought the reporters into the Wilson home on 14th April, 1998. While there the press photographed both Mr and Mrs Wilson, neither of whom were cither suspected of crimes or arrested. Mr Wilson was photographed pinned on a floor with a gun to his head, dressed only in his under-shorts. Mrs Wilson was photographed wearing ‘only a sheer nightgown’. They had been awakened from sleep at 6:45 am to find ‘armed plainclothes officers, accompanied by the reporters, in [their] living room’. The officers were seeking the Wilsons’ son who was not present.
The Wilsons sued the federal and local officers who were present, but not the press, for, inter alia, violating the Fourth Amendment by permitting ‘representatives of the media to enter the Wilsons’ home to observe and photograph the execution of the arrest warrant’. The officers asserted qualified immunity, claiming that there was no clearly established constitutional right under the Fourth Amendment in April of 1992 prohibiting law enforcement from bringing the press into a private residence during the execution of an arrest warrant.
The District Court refused to dismiss the Fourth Amendment claim. It found a violation of the Constitution and that the right to privacy protected by the Fourth Amendment that was violated was clearly established. This decision was overturned in a split decision by a three-judge panel of the Fourth Circuit. The majority refused to decide the constitutional issue, contenting itself with a finding that the right was not clearly established. The majority refused to follow Ayeni and purported to distinguish its own prior decision in Buonocore, claiming that since the press only followed the police, no private search occurred. The dissent pointed out that Buonocore had actually prohibited ‘”government agents from bringing a private citizen into [the Wilsons’] home” whose presence is unrelated to the execution of the search warrant’! The dissent went further, finding, in direct accord with Ayeni, that Fourth Amendment jurisprudence long ago clearly established that police may not invite reporters into private homes when they are executing warrants if those reporters are neither ‘expressly nor impliedly authorized to be there’.
Subsequently, the Fourth Circuit granted review en banc. The 11 judges affirmed the prior split decision by a 6–5 vote. The majority opinion again decided only the qualified immunity issue, refusing to adjudicate the constitutional issue. The majority did, however, adopt a very confused policy analysis advanced by the officers’ counsel that press coverage is a legitimate law-enforcement purpose. While refusing to hold that this so-called purpose ‘actually justified the reporters’ presence while the warrant was executed; we merely hold that the absence of clearly established law holding that they [the possible law enforcement purposes] were not adequate to warrant their [the reporters’] presence, reasonable officers may have beleived them [the purposes] to be’. Of course, as the dissent pointed out, there was no evidence that the officers believed any such thing.
The dissent undertook a full-scale constitutional analysis commencing with Semayne’s Case in 1604 and sweeping into the present. The dissent traced the development of Fourth Amendment law, examined the prior precedents, exploded the notion that Buonocore did not prohibit this conduct and concluded that ‘we should wholeheartedly agree’ with Ayeni’s conclusions that the officers’ conduct was constitutionally unreasonable.87 The dissent went on to approve the Berger decision as well and to equate the agents’ conduct in Maryland with that in Montana and New York since ‘the execution of the arrest warrant at the Wilsons’ home, just like the search of the Bergers’ ranch “at all times was intended to serve a major purpose other than law enforcement …” Both searches were also intended to serve the private interests of the media. These invasions, no less than the search of the Ayenis’ home, turned private property into a stage for “law-enforcement theatricals”.’
The dissent flatly posed the issues:
‘The majority goes much too far when it sanctions unconsented-to public tours of private homes, with photography allowed, under the guise of an arrest warrant. After today, any police officer entering a private home under a search or an arrest warrant may bring along any observer as a bystander, even an observer there only to serve his own commercial purposes or to satisfy mere curiosity … Far from protecting us against tyrannical police practices, the majority’s opinion today threatens one of the most sacred rights protected by the United States Constitution. From now on in the Fourth Circuit, unlike the Second or Ninth, if ever the government need enter a private home, the home — and its occupants — can be laid bare for all the world to see.’
‘The Fourth Amendment guarantees that the sanctity of the home, one’s castle, will not be disturbed unless by warrant or pursuant to a specific warrant exception. These reporters were not mentioned in the warrant. Their presence was not justified by any exception to the warrant clause, nor was it reasonably necessary to accomplish the purposes of the warrant. These reporters were in the Wilsons’ home strictly for their own commercial news-gathering purposes. When police orchestrate the entry of third parties, including newspaper reporters, into a private home without the consent of the homeowner, with the authorization of a warrant, for no legitimate law enforcement need and justified by no exigent circumstances, they violate the clearly established protections of the Fourth Amendment.’
Of course, this was merely the dissent. The majority refused to decide, preferring apparently to perpetuate these police practices by preventing perpetually a clear resolution of the conduct’s propriety.
The US supreme court
Following denial of rehearing, both the federal agents and the media defendants petitioned the Supreme Court for review in Berger. Simultaneously, the Wilsons asked for review of the decision in their case.
The cases reached the Supreme Court together and, it is now known, will be decided together. On 9th November, 1998, the Supreme Court issued the following order:
HANLON, RODNEY, ET AL.
BERGER, PAUL, ET UX.
WILSON, CHARLES, ET UX.
LAYNE, DEP. U.S. MARSHAL
United States Supreme Court
Filed November 9, 1998
The Motion for writs of certiorari are granted limited to the following questions: 1. Whether law enforcement officers violate the Fourth Amendment by allowing members of the news media to accompany them and to observe and record their execution of a warrant? 2. Whether, if this action violates the Fourth Amendment, the officers are nonetheless entitled to defense of qualified immunity? The cases are consolidated and a total of one hour is allotted for oral argument.
The Court, however, only granted review to the federal agents in Berger. The petition by the media is pending. Thus, the press will not participate as parties in the argument.
The Ayeni and the Berger courts were troubled by the reality of government and the press marching hand-in-hand to achieve higher ratings, as were the dissenting judges in Wilson. In light of the traditional roles played by each, where the media generally serve as a government watchdog and the government seeks to govern without unduly interfering with personal, individual liberties, the media and government make strange bedfellows. The corrupting influence of their joining forces to create titillating television shows has blurred roles, with government agents becoming reporters and reporters becoming government agents. The negative effects of this insidious arrangement, the weakening of both the media and the government, are exemplified by the Berger and the Ayeni cases.
In Ayeni, the media’s involvement in the pre-indictment search weakened the prosecution’s case, resulting in an impaired prosecution. An innocent woman and child were cynically subjected to indecent indignities solely for commercial purposes. The government considered good press more important than admissible evidence or constitutional rights.
In Berger, CNN executed an agreement giving the government control over when the network could publish video of the search. The oft-made media argument that their presence at a search.
could serve to document police abuses was shown to be disingenuous. If the agents had beaten the elderly Bergers, CNN would not have been able to immediately report that fact. The press had sold its independence to the police. The police had sold its public trust to the press.
In Wilson, no federal agent restrained the press in its seizure of images of two virtually unclothed citizens in their own home who were not even the objects of the arrest warrant. Indeed, the raid was only one of a series in which the Washington Post repeatedly entered private homes at police invitation, publishing photographs of the presumed innocent.
In these three cases, law enforcement was distracted from its work by the media presence; the agents were required to perform for the cameras and to ‘baby-sit’ their lay charges tagging along on a police function. In fact, the written agreement exposes the tacit, implicit, and unavoidable agreements between the media, whenever they rely on the government for access to stories, and the government, whenever it violates the limits on its police powers to benefit itself by aligning itself with the media: the media will subordinate its independence and the government will perform for the cameras. The result is prosecutions motivated by publicity, not the public interest. The losers are the citizens of this country and their constitutional rights.
The constitutional right of privacy is fundamental to the American conception of liberty. ‘The Right to Be Let Alone’, free from venal intrusions by the media and government, is and has been, self-evident since the Revolution. The holdings of Ayeni and Berger and the minority opinion in Wilson uphold and protect our basic freedoms. The majority in Wilson forfeits those freedoms, failing even to dignify them with a decision on the merits. The Supreme Court will now decide.