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Associated Press photographer Alan Diaz, who worked himself into perfect position to capture the government raid to snatch Elian Gonzalez, is already this year’s shoo-in for the “How I got that shot” contests. His electric photos of the boy and the federal agent who seized him at gunpoint will be endlessly dissected in the coming months, as the propriety of the raid is likely to be tested in Congress and possibly in the courts as well. Diaz emerged from the Gonzalez home with gold for his portfolio. But the kind of journalism that his photos represent — on-the-spot coverage of police searches — is sure to be less common in the future, thanks to a ruling by the Supreme Court last term. At this moment of triumph for the power of photo-journalism, the cost of last year’s decision in Wilson v. Layne, the so-called media ride-along case, emerges in a harsh new light. Legally speaking, we have those unforgettable pictures of the raid only because members of the Gonzalez family, who came to know Diaz during the months-long siege in Miami, invited him inside their home just before the agents of the Immigration and Naturalization Service arrived at the front door. Under Wilson, INS officers would not have been allowed to bring news media into the house on their own initiative — even though Attorney General Janet Reno believed (and rightly so) that press coverage would make the public more confident that the government had acted appropriately. FIRST AMENDMENT DOWN Initially, the suit seemed to promise a full-blown clash between the First and Fourth Amendments. But when the Supreme Court issued its opinion last May, it was more of a hit-and-run. The Court barely nodded to the First Amendment interests at stake. Instead of reading the two amendments together and improvising a give-and-take, as the Court has done in the free press/fair trial context (where the First and Sixth Amendments come into conflict), the Court framed the case almost entirely around the Fourth Amendment issues. The justices held unanimously that since the media did not “aid” in the “execution” of the search, their presence at the Rockville address was not warranted. Under this formalistic approach, there was no “direct relation,” in the Court’s words, between the “need for accurate reporting on police issues” and the “constitutional justification” for “police intrusion” into a private home. Neither was the interest in “minimiz[ing] police abuses and protect[ing] suspects” deemed sufficient to put reporters on the scene. After the INS raid in Miami and the widespread publication of the photo of a six-year-old cowering in a closet, news accounts revealed that Reno had overruled some of her deputies in deciding to permit press coverage of the operation. She apparently ordered the agents not to interfere with photographers and television cameras in and around the house. (Her command seems to have been ignored in the case of an NBC cameraman near the front door.) Reno’s fear — that a news blackout would smell of a cover-up — is precisely the sort of legitimate “law enforcement purpose” that the Supreme Court brushed off in Wilson. CAMERA OBSCURED While the new legal rules that govern media coverage of police searches are no doubt a sideshow to the larger drama of the Gonzalez case, it remains a discouraging fact that a government that has tremendous power to restrict press access at critical moments has lost a tool to enhance such access. (Had the Justice Department chosen, for example, to block off entirely the area around the Gonzalez home on “public safety” grounds, even journalists who believed that they would have been welcomed inside the house would probably not have been able to gain entrance.) It’s true that the prohibitions of Wilson did not come into direct play in Miami, as the AP photographer was asked into the home by the family itself. But the set of circumstances that produced the Diaz photos was a fluke. In a typical search and seizure, reporters will not be standing by, waiting for an invite like idle teen-agers at a high school mixer, and we will have lost a useful means of monitoring government conduct. Media ride-alongs do not present a simple case, to be sure. News organizations routinely put up shields (resisting subpoenas, protecting confidential sources) to avoid being seen as an arm of the state. The police-press cooperation necessary for ride-alongs may therefore seem out of character. Indeed, historically the Fourth Amendment has complemented the First Amendment. The 18th century pamphleteer running the presses in the attic is a perfect illustration of how privacy in the home and freedom of speech paired well together. The fact that the Fourth Amendment was on the other side in the Wilson case should give us all something to ponder. The Wilson Court’s unwillingness to consider seriously the public benefits of responsible search-and-seizure journalism, and to find some middle ground, means fewer pictures like those from the Gonzalez raid. That’s what I see when I look at the fruit of Diaz’s charmed moment behind the lens. Bruce D. Brown, a former Legal Times reporter, is an associate in the D.C. office of Baker & Hostetler specializing in media law.

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