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Power over the press.

A reporter for an industry magazine wants to attend your board meeting. A correspondent for a rival newsletter demands to be given the same access to the convention and all information the association's own staff editors have; she threatens to sue if not admitted. The publisher of a competing news organ wants to slip copies of its show daily under the doors of hotel rooms occupied by association members attending the annual conference. He says there is nothing you can do to stop him.

You call your lawyers and ask, "Do we have to?"

In almost every case, the answer is no. Associations have no legal obligation to honor, respond to, or even acknowledge inquiries or demands from the press. Associations do not have to admit the press to meetings, conventions, exhibits, or any other functions. Nor are associations obliged to admit any or all members of the press because they invite some. It's perfectly legal for an association to allow its own publication or news staff at board or executive committee meetings and to exclude all other members of the press.

The First Amendment and freedom of the press apply only to government attempts to block or restrain the press from gathering information to which it is entitled. As former Supreme Court Chief Justice Warren Burger said, while there is an undoubted right to gather news from any source, this does not mean the First Amendment compels either private people or governments to supply information. (Justice Burger was himself notorious for excluding the press from speeches he gave at American Bar Association conventions and other appearances.)

Excluding press from meetings. Members of the press have no legal right to attend association meetings of any type. Association meetings are not open to the public and so may be closed to the press. The same rule applies if the meeting is held on public, government-owned property, such as a city's convention center. The event is still essentially private.

The situation is more complicated if the meeting is open to the public; you may have to admit reporters then--but only as members of the public. Similarly, if a meeting is open only to members or allied affiliates, and the reporter is a member, you cannot exclude him or her. The law doesn't accord the press any special access, but all members have the same access to association events as other members.

In-house versus outside press. An association may permit its in-house publications staff access to association events without granting the same access to other members of the press. The same rule applies to reporters working for the association on a stringer, one-time, or independent contractor basis. The basis of their access is their status as employees or agents of the association; the association is directing or controlling their work. As the employer, the association has the right to direct people to attend specified functions as part of their jobs.

The right to know. An association has no legal obligation to give the press any information to which it is not otherwise entitled. The press is entitled to a copy of the association's Form 990 and its EEO-1 form or affirmative action plan if the association is required to file either with the Equal Employment Opportunity Commission.

These are the few exceptions to the rule: If an association has a legal duty to turn over certain information upon request, it cannot deny a legitimate request just because the person asking is from the media. Here again the right to have the information is based on the reporter being a member of the public, not the media.

Other types of information allow for less certain answers. Must an association turn over minutes of meetings, copies of the chief executive's employment contract, or its membership list? Under state corporation law, a member of a non-profit organization is entitled to inspect its books and records. The scope of this right has given rise to litigation. Some states specify that the right to inspect must be "for a proper purpose"; other cases have raised the issue of whether the right to inspect may be delegated (e.g., to an attorney or accountant).

If a reporter is a member of the association, therefore, he or she may exercise the right to inspect books and records. Access is not automatic, however. When in doubt or disinclined to turn over information, deny the request. The burden is on the person seeking the information to initiate compulsory legal process to obtain it.

Membership lists present a special problem. An association is not obliged to turn its membership list over to anyone (perhaps with the exception of a member). But if you regularly sell the membership list, it may be fruitless to deny it to a news organization. Even so, the association has no obligation to sell, rent, give, or loan it to any particular person. Under antitrust law, a refusal to deal, provided it is not part of a conspiracy in restraint of trade, is perfectly legal.

What can an association do if a reporter obtains its membership list? It depends on the source. Probably nothing if a rival publication obtains the names from a source such as a commercial supplier of mailing lists. If the reporter obtains the list from a staff person or member of the association, the association may seek to have it back or block its use. Such proceedings for an injunction or equitable relief, however, probably are not worth the effort. It is doubtful a court would force return of a mailing list, short of proof that the recipient stole it or obtained it by fraud or deception.

Restricting distribution. An association's power over the press is weakest when it attempts to restrict distribution of competing or nonassociation publications. With limited exceptions, don't rush to interfere.

The problem arises when rival publications seek exhibit space or the right to distribute materials on the floor, in the hall, or at the hotels. The association may refuse to sell (or give) rival publications booth space. It may also refuse to permit other publications to distribute anything to its members or attendees on the convention floor. The association cannot, however, deny anyone access to public areas of a convention hall. Such public areas usually include entrance halls or areas, sidewalks, access roads, and adjacent property. Most convention hall contracts expressly reserve public areas over which the leasing association has no control.

Similarly, although an association may attempt to contract with hotels to prohibit distribution of unauthorized literature to guest rooms, the hotel may be reluctant to do this. The owner of the property has the same right to regulate access to hotel guests and rooms that the association has to regulate access to its events. In fact, as separate entities, association and hotel are capable of "conspiring" with each other, which could give rise to antitrust action.

In sum, no law guarantees any member of the media access to any association information. The rule is a member of the press has the same right of access as any member of the public: no more, no less. Similarly, that an association's own press people are permitted to attend certain events does not mean all members of the media have a right to attend. If you do not want to admit the press to your association function, deny any requests for access.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1991 American Society of Association Executives
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Title Annotation:Legal; how to manage media relations
Author:Webster, George D.
Publication:Association Management
Article Type:Column
Date:Dec 1, 1991
Previous Article:Annual report 1991.
Next Article:Buzzwords.

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