I just got out of Man of Steel, and there’s something of a doozy of a legal question pretty early on. There are some very mild spoilers inside, but no real plot points, so proceed at your discretion.
The issue here is that when Lois Lane (in her canonical role as a reporter for the Daily Planet) shows up at the site of what we later learn is a crashed Kryptonian ship, she is met by Col. Nathan Hardy of the US armed forces, who doesn’t really want her there. In typical Lois Lane style, she confronts the problem directly, and says something to the effect that the only reason she’s there is that “We’re on Canadian soil, and an appellate court overturned your injunction.”
Say what now?
II. Civil Procedure
Let’s set aside the subject matter of the discussion for a second to do a brief review of civil procedure. An injunction is a court order for a particular party to do or not do something, usually the latter. So for there to be an injunction in place, the military must have sought such an order from a trial court. But from Lane’s description, it’s not entirely clear which court. And I don’t mean which Federal District Court, but which country. We are in Canada, after all, and there is a reference earlier in the movie to the site being manned by researchers and armed forces from other countries. That’s never made clear, so let’s just assume that since Lane is an American, and she’s talking to an American military officer, that we’re talking about Federal District Court. If we’re not, all bets are totally off.
Okay. Her statement indicates not only that the military has sought and obtained an injunction, but that she—or presumably the Daily Planet on her behalf—has fought that injunction in court, lost, filed a timely appeal, had that appeal heard, and had the appellate court throw out the underlying court’s injunction. At that point the military either declined to seek review by the Supreme Court or the Supreme Court declined to intervene.
Even from a strictly civil procedure standpoint, this is a little implausible. Assuming for the purposes of argument that the military would have sought an injunction in the first place—more on that in a second—the wheels of justice do not tend to move particularly rapidly. Litigation takes time. Years, frequently. Getting a single case from complaint to verdict inside of twelve months is moving along at a pretty good clip. Moving from there to a final appellate judgment in less than a second year is also pretty impressive. The record is most likely New York Times Co. v. U.S., the case about the Pentagon Papers, which the New York Times published on June 12-14, 1971. The Department of Justice sued immediately, and the case went from S.D.N.Y. (328 F.Supp. 324) on June 15, to the Second Circuit (444 F.2d 544) on June 23, to the Supreme Court (403 U.S. 713) on June 30, 1971. That’s about two weeks. Even Bush v. Gore took about a month.
But the Pentagon Papers was about the past publication of classified documents. This is probably a First Amendment case, but it’s more about the right to investigate than the right to publish. We’ll talk about why in a minute, but convincing the courts that an issue like that constitutes an emergency on the scale of New York Times Co. v. U.S. or Bush v. Gore sounds like a tough sell at best. The movie doesn’t really say one way or the other, but I took it as implying that the find was less than a few months old when Lane helicoptered in. So the timing is problematic.
III. Military Access Restrictions
Then again, why the military would need an injunction for this sort of thing is also unclear. The military generally doesn’t have to ask the courts for permission to exclude civilians from the areas in which it is operating. All those embedded journalists in Iraq and Afghanistan? They’re there at the Pentagon’s good pleasure, not of right. We’re not talking about places where the military has operations generally—the military does not gain jurisdiction by driving tanks around—but places where the military has established a base of operations, even a temporary one. The military has more or less absolute control over who is permitted to be there, and the courts aren’t going to say anything about it. If you walk up to a military base without a pass, you’ll be stopped at the gate and asked what you’re about. Even if the base has areas that are open to the public, trying to go anywhere that the base commandant says that you can’t will result in you being stopped. Persist, and you’ll either be physically removed from the base and told not to do that again or (and especially if this isn’t your first rodeo) arrested for trespassing on military property, a violation of 18 U.S.C. § 1382 and a misdemeanor. Good times. And no, the fact that we’re in Canada doesn’t count: the courts have interpreted the statute to include all those areas which the military “occupies and controls,” even those not part of the United States. You can’t just show up at Camp Rhino any more than you can Camp Pendleton.
So when Lane says that the military’s “injunction” was thrown out, it’s probably best to assume that she’s speaking casually and that what’s really happened is that the Daily Planet has sued for permission to access this site despite the military’s objections, not that the military has sought an injunction which the Planet opposed. There’s no obvious reason that the military would need an injunction for this sort of thing: it is statutorily authorized to restrict civilian access to military facilities.
IV. The First Amendment and Investigation
Unfortunately, changing the procedural details doesn’t really solve the problem. The First Amendment protects the freedom of the press. Contrary to popular belief, this does not mean that media companies exist in some kind of constitutionally protected category, and that people with press passes have rights that the rest of us do not. Rather, the freedom of the press simply means that one has a right to put in print anything that one would have a right to speak out loud. As this was most decidedly not the case for much of British history, one can see why the Founding Fathers sought to conflate the rights to freedom of communication in this manner. The courts have recognized that the First Amendment also serves to protect “rigorous public debate,” particularly where politics are concerned, but this is more of an animating principle than it is a concrete right in and of itself.
What this means is that lots of things that journalists would really like to be able to do are not actually protected by the First Amendment. The most well known example would be the so-called “reporter’s privilege,” i.e., the right of a journalist to decline to reveal the identity of confidential sources or to disclose their investigative work product. Courts do not like doing that sort of thing and invoke the First Amendment when they decline to do so, but this is one of the least absolute First Amendment freedoms. A journalist actually went to jail for refusing to disclose confidential sources related to the Plame affair, and both district and circuit courts ruled against her. Suffice it to say that the farther one gets from actual publication, the more attenuated one’s First Amendment rights become.
As to the fact that there is some kind of qualified privilege in most jurisdictions, if a court can find a reason other than the First Amendment for denying requests put to journalists, it will usually try to base its decision on those grounds. These include things like state shield laws, but courts also freely rely upon the discretion granted them in the federal rules pertaining to discovery (particularly Rules 22 and 37). Courts are sensitive to the power of discovery and do not take kindly to making third parties fish through archives. The fact that newspapers could easily be forced to do this on every single case is a good reason for the courts to view such requests skeptically completely independent of the First Amendment. If a litigant can come up with a really good reason, a court may permit the discovery, but the fact is that it is a journalist’s job to be where interesting things happen, so forcing them to give testimony whenever they see something interesting would actually make it impossible for them to do their jobs. That’s the kind of burden courts think about when deciding to grant discovery requests to third parties.
But now we’re talking about an even more attenuated claim of privilege than the disclosure of confidential sources or even non-confidential investigative information. While there is a general right to publish, and a qualified right to resist disclosure of the sources and fruits of one’s investigations, there is no general First Amendment right to access people, documents, or places. Take the Pentagon Papers for example. The First Amendment protects publication, so once the Times got hold of them, the courts weren’t going to stop them from being published. But the First Amendment does not guarantee you access to anything, so if the Times had asked for the papers, the government would have said no, and if it had sued for access, it would likely have lost. Leaks of classified information have been in the news for a few years now, but note that the people who might get in trouble are almost always the people who gave information to the media. The media organizations themselves have tended to receive little attention, which is partly why the recent flap about the Department of Justice investigating them was received so badly.
This is to be distinguished from things like the Freedom of Information Act. Congress may decide to grant access to various things via such mechanisms as the FOIA, but that is a statutory privilege and is strictly limited to those things covered by the statute. It does not, for instance, cover classified materials, and it provides no access whatsoever to facilities, property, or even people. It is strictly limited to documents, and even getting those can be one heck of a fight. But it is based purely on Congress’s legislative authority, not the First Amendment.
So we’re talking about a court ordering the military to permit a reporter to investigate, in person, in an active military site. That’s just not going to happen. Indeed, according to this article, the military basically doesn’t have to permit journalists access to military bases if it doesn’t want to, and the courts are usually deferential to the military on these issues. So even if the Daily Planet had sued for access to this military site, it’s beyond me why any court would have ruled in their favor.
So the way the movie handles this particular issue, i.e., justifying Lane’s presence on a military base, was basically botched. There’s really no way of making what she says even remotely plausible.
What makes this annoying is that there’s actually a pretty simple solution: Show Perry making a phone call to the Secretary of Defense (or maybe General Swanwick in order to avoid introducing another character), who just happens to be his college/drinking/golfing buddy, and who turns around and orders Col. Hardy to give Lane access. Kind of like how Richard Castle gets assigned to Det. Beckett’s department in Castle: he parties with the mayor.
Must the military permit access to these sorts of sites? No, probably not. But general officers and the Secretary can order such access if they want to. So instead of making up a line about some court (we know not where) countermanding an order (we know not what) to deny her access (we know not why), she can just say “Perry White was roommates with General Swanwick at Columbia, and they haven’t missed their quarterly golf outing for twenty years. You don’t like it, take it up with the Pentagon.” Boom. Done. And the audience gets a scene with Laurence Fishburne and Harry Lennix playing golf, which would be awesome.