State v. Lashinsky

PASHMAN, J.,

dissenting.

I have no quarrel with the standard which the majority has espoused in judging the legality of defendant’s actions. Whether a newsman’s refusal to obey a police officer’s command constitutes a violation of N.J.S.A. 2A:170-29(2)(b) must, in the final analysis, hinge upon whether “from an objective standpoint and under all of the circumstances” that command was reasonable. See ante at 1128. Moreover, in making such a “reasonableness” determination, we must not lose sight of the media’s special role in enlightening the public with respect to current events and thus be mindful that the newsman “has a legitimate and proper reason to be where he is.” Ante at 15.

I part company with the majority, however, in its application of this “reasonableness” test to the facts of this particular case. The only “interference” caused Trooper Herkloz by defendant consisted of the alleged distraction deriving from defendant’s photographing of the scene of the accident. In no other respect can it seriously be urged that defendant—as opposed to the non-media bystanders—“obstructed” Herkloz in the performance of his duties. Defendant’s actions, however, constitute the precise type of conduct in which any media photographer must *21engage if he is to adequately report a news event. To characterize such conduct as an unreasonable interference with police activities is equivalent to a holding that the police may remove a newsman from the scene of an accident merely because that newsman is competently performing his job. As such, the “special access rights” of the press to which the majority pays lip service are rendered meaningless. I therefore respectfully dissent.

I

N.J.S.A. 2A:170-29(2)(b), the statute which defendant allegedly violated, provides in part:

Any person who in any place, public or private, * * * [obstructs, molests or interferes with any person lawfully therein * * * [i]s a disorderly person.

If construed expansively, the above-cited language would seemingly prohibit any conduct which a police officer considered “annoying” or “distracting” to himself or any other member of the populace. Encompassed within the statute’s proscription would be everything ranging from first degree murder to jeering at a baseball player as he comes to bat. Such an interpretation of N.J.S.A. 2A:170-29(2)(b), however, would clearly render the statute void for vagueness under the due process clause of the Fourteenth Amendment inasmuch as policemen would possess the power to “convert the character of an event from nonpunishable to punishable by proclamation alone.” State v. Manning, 146 N.J.Super. 589, 599 (App.Div.1977) (Antell, J.A.D., dissenting); see, e. g., Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). As the Supreme Court stated in Coates, supra:

Conduct that annoys some people does not annoy others. Thus, [an] ordinance [making it unlawful to conduct one’s self “in a manner annoying” to others] is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that *22no standard of conduct is specified at all. As a result, “men of common intelligence must necessarily guess at its meaning.” * * * [402 U.S. at 614, 91 S.Ct. at 1688, 29 L.Ed.2d at 217]

Fortunately, the courts of this State have long eschewed a literal interpretation of the language of N.J.S.A. 2A:170-29(2)(b). Instead, we have recognized that the statute was primarily

intended to apply only to such [persons] as shall, by their acts, intentionally obstruct or interfere with the movement of persons lawfully [situated in any place], [Haywood v. Ryan, 85 N.J.L. 116, 118-119 (Sup.Ct.1913)]

See, e. g., State v. Smith, 46 N.J. 510, 520-521 (1966), cert. den., 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966). As such, the better reasoned decisions have upheld convictions predicated upon unlawful interference with policemen only in situations in which a defendant has purposely obstructed an officer’s performance of his duties, or physically prevented the officer from carrying out such responsibilities. See, e. g., State v. Smith, supra; State v. Furino, 85 N.J.Super. 345 (App.Div.1964); Haywood v. Ryan, supra; State v. Taylor, 121 N.J.Super. 395, 399 (Cty.Ct.1972).

Through the enactment of the new criminal code, our Legislature has expressed approval of precisely such a construction of the disorderly persons statute. N.J.S.A. 2C:29-1 (which, effective September 1, 1979, will supersede the present N.J.S.A. 2A:170-29(2)(b)) provides:

A person commits a disorderly persons offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. * * * [emphasis supplied]

Thus, under the new criminal code, the Legislature has explicitly decreed that only purposeful or physical interference with a public servant’s attempt to perform his duties is illegal.

*23Concededly, the defendant here involved neither purposely nor physically obstructed Trooper Herkloz. Our inquiry into the legality of defendant’s actions is not, however, at an end. I, as does the majority, believe that it would be unwise to so narrowly delimit the scope of N.J.S.A. 2A:170-29(2)(b) that policemen would be powerless to enforce reasonable commands during emergency or near-emergency situations. The State has a strong interest in keeping the public at a distance from the site of a recent crime or accident in order that the victim be more easily attended to, evidence be preserved, and the safety of the crowd not be jeopardized.

The new criminal code explicitly allows police officers to enforce such reasonable requests. N.J.S.A. 2C:33-7(b), effective September 1, 1979, provides in part:

A person in a gathering commits a petty disorderly persons offense if he refuses to obey a reasonable official request or order to move:
(1) To prevent obstruction of a highway or other public passage; or
(2) To maintain public safety by dispersing those gathered in dangerous proximity to a fire or other hazard. * * * [emphasis supplied]

N.J.S.A. 2C:33-7(b) has no counterpart in our current criminal code. Nonetheless, in light of the strong public interest in allowing police officers to deal effectively with emergencies, it seems reasonable to conclude that the Legislature meant to encompass the conduct there prohibited within the ambit of N.J.S.A. 2A:170-29(2)(b). Thus, an individual is guilty of a disorderly persons offense if he refuses to accede to a reasonable police request given during an emergency or near-emergency situation.

In the present case, Trooper Herkloz’s request that non-media bystanders leave the scene of the accident was reasonable. Herkloz, the only police officer in the vicinity of the wreck, was *24required to secure the site in order that evidence of the collision be preserved and the victims’ personal property not be stolen. He was also under a duty to aid the surviving victim as best he could. These tasks would have been made immeasurably more difficult if he was simultaneously compelled to keep a constant watch on the crowd. Moreover, Herkloz was understandably concerned that the safety of the on-lookers would be jeopardized by an explosion. Given these circumstances, had the non-media bystanders refused to disperse, Herkloz would have been wholly justified in making arrests for violations of N.J.S.A. 2A:170-29(2)(b).

Defendant was not, however, a non-media bystander. He was a news photographer engaged in the task of reporting a newsworthy event. As such, Herkloz’s request that defendant leave the scene of the accident, although given in good faith, was clearly unreasonable.

II

When on assignment, a journalist does not visit the scene of a crime or an accident simply for his own edification. He is there to gather information to be passed along to the public at large. It is precisely for this reason that the framers of the First Amendment accorded news media representatives a special right both to acquire and disseminate the news.

That the Constitution speaks separately of freedom of speech and freedom of the press “is no constitutional accident, but [rather] an acknowledgement of the critical role played by the press in American society.” Houchins v. KQED, Inc., 438 U.S. 1, 17, 98 S.Ct 2588, 2598, 57 L.Ed.2d 553, 566 (1978) (Stewart, J., concurring). The preservation of a full and free flow of information to the general public has long been recognized as a core objective of the First Amendment. See, e. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346, 355 (1976); *25Procunier v. Martinez, 416 U.S. 396, 408-409, 94 S.Ct. 1800, 1808-1809, 40 L.Ed.2d 224, 237 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683, 691-692 (1972).

News media, by keeping the public abreast of current events, make possible “[e]nlightened choice[s] by an informed citizenry” —“the basic ideal upon which an open society is premised * Branzburg v. Hayes, 408 U.S. 665, 726, 92 S.Ct. 2646, 2672, 33 L.Ed.2d 626, 666 (1972) (Stewart, J., dissenting). Not only does a free press provide people with a wide range of fact and opinion, but, “by exposing the actions of public officials, it serves as a check upon governmental error and abuse.” In re Farber, 78 N.J. 259, 287, cert. den., 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978) (Pashman, J., dissenting); see, e. g., Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600, 613 (1966); Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 548 (1965). As such, it is an “incontestable precondition of self-government.” Branzburg, supra, 408 U.S. at 726, 92 S.Ct. at 2672, 33 L.Ed.2d at 666 (Stewart, J., dissenting).

It is therefore not surprising that a majority of the Justices who participated in Houchins, supra, recognized that in certain circumstances the press must be allowed greater access to newsworthy events than that accorded the general public. See 438 U.S. at 16, 98 S.Ct. at 2598, 57 L.Ed.2d at 566 (Stewart, J., concurring); id. at 31, 98 S.Ct. at 2605, 57 L.Ed.2d at 575-577 (Stevens, J., joined by Brennan and Powell, JJ., dissenting).

In New Jersey, the State Police have sought to insure that this special access right is preserved by issuing “press cards” to representatives of the media. As testified to below by Lieutenant Gordon Hector, Chief of the State Police Information Bureau, this press card identifies its possessor as a responsible individual engaged in a task deeply affected with the public *26interest, and thus “as an individual who in the discretion of [a] police officer can proceed beyond that point where the public goes if it fits in with what is going on at the time.”

The press card does not purport to grant newsmen a carte blanche to wander wherever they may choose. Media representatives remain obligated under N.J.S.A. 2A:170-29(2)(b) to accede to the reasonable commands of police officers. However, as the majority emphasizes, in making this “reasonableness” determination, we must be ever mindful that “such an individual has a legitimate and proper reason to be where he is.” Ante at 15. In the words of Justice Stewart:

terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public [the information which they will acquire]. [Houchins, supra, 438 U.S. at 17, 98 S.Ct. at 2598, 57 L.Ed.2d at 566 (Stewart, J., concurring)]

I therefore agree with the majority that “whether [this] newsperson’s conduct [was] disorderly must turn on whether from an objective standpoint and under all of the circumstances, the policeman’s order to the newsman was reasonable, taking into account the special role performed by the press.” Ante at 15. What I cannot subscribe to is the wholly unreasonable manner in which the majority has applied this test to the facts of the present controversy.

Ill

Although the majority attempts to convey a contrary impression, it is clear from the evidence adduced below that the only “interference” caused Trooper Herkloz by defendant consisted of defendant’s photographing of the scene of the accident. In no other respect did defendant, who was 15 to 20 feet away from the wreck, “obstruct” Herkloz in the performance of his duties. Consequently, Herkloz’s order that defendant leave the site was clearly unreasonable.

*27The majority emphasizes that defendant became embroiled in a heated exchange with Herkloz which both directly and indirectly interfered with the carrying out of Herkloz’s duties. While engaged in the argument, the majority maintains, Herkloz was forced to neglect his police responsibilities. Moreover, the argument attracted many non-media bystanders back to the scene of the accident.

What the majority fails to emphasize, however, is that this argument erupted after and as a direct result of Herkloz’s order that defendant move on. A command which is unreasonable when uttered does not become reasonable simply because a newsman will not abide by its terms. And this is so despite the fact that the command was issued in good faith. In effect, the majority has ruled that a newsman acts illegally if he stands up for his rights and refuses to accede to an arbitrary, and hence unlawful, request. If Herkloz’s initial order to move back was unreasonable, any distractions caused by the ensuing argument were of his own making—not that of defendant.1

The majority also intimates that the non-media bystanders would not have dispersed had defendant been allowed to remain in the vicinity of the wreck. Even assuming that such was the case, Herkloz’s order that defendant move on was still unreasonable. As detailed in Part I, supra, Herkloz had ample justification to request non-media bystanders to disperse. If any of these individuals refused to be bound by such an order—whether or not such a refusal was predicated upon defendant’s presence—Herkloz could, and should, have arrested them for violations of N.J.S.A. 2A:170—29(2)(b).

*28The unreasonable conduct of these individuals, however, cannot be cited as justification for Herkloz’s arrest of defendant—a newsman who was reasonably exercising his special access right to newsworthy events. It would be absurd to rule that a media representative forfeits this special access right merely because others over whose actions he has no control refuse to abide by a reasonable police request. The majority would rather penalize the press than condemn the actions of the non-media lawbreakers.

Thus, we are led back to the inescapable conclusion that the only “interference” caused by defendant consisted of his photographing of the event. The majority suggests that this “interference” was substantial inasmuch as defendant's presence diverted Herkloz’s attention from the task of aiding the victim to that of insuring that the victim’s personal property was not stolen. Moreover, Herkloz was concerned that defendant’s safety would be jeopardized.

Again, the majority fails to apply its own admonition that media representatives have greater access to newsworthy events than do members of the public. In any accident, personal property will be strewn about and some risk will exist that an overturned vehicle will burst into flames. If these circumstances alone justify a police order that newsmen leave the vicinity, I am at a loss to envision any situation involving an auto wreck in which such a command will be deemed “unreasonable.” Thus, having paid lip service to the special access rights of the media in Part II of its opinion, the majority in Part III has basically decreed that no such rights exist.

The press card carried by defendant and shown to Trooper Herkloz identified defendant as a responsible individual engaged in the important task of bringing a newsworthy event to the attention of the public at large. Herkloz therefore acted unreasonably in assuming that this responsible individual—as opposed to the non-media bystanders—might tamper with evidence lying about or abscond with the victims’ personal property. In the *29absence of proof to the contrary, he should rather have presumed that defendant would attend only to his job of photographing the scene.

Likewise, Herkloz should have realized that, as a card-carrying member of the press, defendant was sufficiently mature to evaluate the safety risks posed by the overturned vehicle and to position himself so as to minimize those risks. This is not to say that newsmen must be allowed access to any site, no matter what the risk of harm might be. Where, however, as in the present case, the risk is not substantial, a media representative should be allowed to situate himself in relatively close proximity to the vehicle. The majority’s holding to the contrary in effect allows the police to remove any newsman from the scene of any accident merely because that newsman is competently performing his job. As such, the press’s right of special access is rendered meaningless.

Conclusion

This case marks the second occasion this Term in which a majority of the members of this Court have lauded the virtues of a free press and then proceeded to deny newsmen the rights to which they are both constitutionally and statutorily entitled. As in In re Farber, 78 N.J. 259 (1978), the majority has today extolled the workings of news media personnel and proclaimed to all the world their right of special access to newsworthy events. And just as in Farber, the majority has disregarded its own strictures and branded the newsman here involved a criminal.

I would reverse defendant’s conviction and hold that the conduct in which he engaged did not constitute a violation of N.J.S.A. 2A:170-29(2)(b).

The concurring opinion emphasizes that media representatives, like all other members of the populace, must obey the law’s strictures. As to this conclusion no one would disagree. The question presented in this case is not, however, whether journalists must obey the law—rather, at issue in this case is the scope of N.J.S.A. 2A:170-29(2)(b) and whether the actions taken by this particular defendant did indeed violate that law.