Press Freedom Violations, Police, and the Need for Heightened Legal Protection for Journalists

By: Hannah Cheves

Edited by: Olivia Cohen

In recent years, the integrity of journalists and newsrooms has come under fire in ways many have never seen before. With repeated attacks from the current President, who maligns the “fake news media”[1] on Twitter and in speeches at every opportunity, trust in the media has fallen drastically, with only about 40% of Americans claiming to have a “great amount/fair amount” of trust in the media.[2]  This has been coupled with increased press freedom infringements against journalists in protests. According to the U.S Press Freedom Tracker, a nonpartisan database of press freedom incidents in the United States, there have been over 880 reported aggressions against the press, including many by police or other government entities during the 2020 Black Lives Matter protests alone.[3]  This number includes aggressions such as equipment seizures, equipment damages, arrests, subpoenas, denial of access, or other incidents.Those infringements committed by governmental entities, such as the police, normally fall under the umbrella of violating a journalist’s First and/or Fourth Amendment rights. The increased frequency of these violations can hardly be traced back to one single thing, but it is impossible to ignore the anti-media rhetoric that has pervaded the country’s national dialogue in past years. With the increase of these infringements, it becomes more crucial than ever to expand existing legal protections for journalists when they cover protests. 

As it stands, journalists operating in their official capacity are subject to the same laws as non-members of the press when it comes to their reporting. For example, journalists, unless they receive an exemption, must comply with all mobility restrictions, such as curfews.[4]  However, the right of journalists to record governmental interactions are all well documented and solidly founded in legal precedent. In Smith v. Daily Mail Publishing Co., the Court ruled that “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order” Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). Similarly, it is well within the scope of journalists to record police activity, which is an issue that has repeatedly come up in protests. See Fordyce v. City of Seattle 55 F.3d 436, 439 (9th Cir. 1995). For example, Amr Alfiky, a photojournalist, was arrested by police in Manhattan as he filmed the police performing an arrest.[5]  It has also been determined that the right to record police and law enforcement actions is in fact crucial First Amendment protection. See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013). This Statement directly states that “the derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.” 

With these rights clearly established, the rise in the number of cases of violations of press freedoms must be addressed. In many of these cases, such as that of Omar Jimenez[6], the police departments simply release the journalists and, in some cases, apologize.  However, this does not do anything to curb the violence faced by journalists by police during protests, nor the way that this violence interferes with their newsgathering and storytelling. It also does not recognize the Constitutional violation that happens in these incidents, and thus makes the incidents seem milder of an offense than they are. In addition, according to the 2020 Freedom of the Press Foundation report, no police officers have been charged with illegally arresting a journalist, while at least 16 journalists still face long-term legal ramifications for their arrests. The nonprofit legal group Reporters Committee or Freedom of the Press, along with other legal groups, sent a letter to California governor Gavin Newsom denouncing police attacks on journalists.[7] They cited several instances of press freedom violations in California, and asked Newsom to implement protocols to protect journalists at protests. The proposed protocols such as informing officers that detaining a journalist could be a First Amendment violation, discipline for officers who violate that right, requiring officers to display their badge numbers and other identifying information, allow journalists to be exempt from mobility restrictions, prohibiting officers from turning off their body cameras, and releasing information about the interactions of police and the press to ensure legitimacy of these interactions. In October, Newsom vetoed the proposed bill, stating that the language was too broad.[8]

Despite the failure of this bill, it is becoming more and more evident that increased protections for members of the media is absolutely necessary to the health of our democracy. The United States prides itself on freedom, and constantly infringing on the rights of the press could take the country in a dangerous direction, especially in times of great civil unrest. As stated in the U.S Statement of Interest, infringement on these rights “conflicts with the liberties the Constitution was designed to uphold.” See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013) If it is not physical assault on the press, rhetorical attacks, such as the ones we see even from the highest levels of government, give legitimacy to the infringement of First Amendment rights during protests. In these increasingly fraught times, local governments must prioritize the protection of journalists at protests- if not for the media, then for them. Having the country watch as officers violently detain[9] journalists further erodes trust in state governments and police. 

In summary, states and the federal government are not doing enough to protect our nation’s freedom of the press. Governments should enact legislation proactively protecting journalists, rather than looking at each situation on a case by case basis and determining if the arrest or seizure was justified. Further, police should be reminded that they are not at liberty to make arrests of journalists haphazardly, and if they do so, they need to be charged, as they directly contradict First Amendment rights and years of precedent determining they can and must be held accountable.

notes:

1. Berkeley Lovelace, “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise,” CNBC (CNBC, October 29, 2020), https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

2.  Megan Brenan, “Americans Remain Distrustful of Mass Media,” Gallup.com (Gallup, November 9, 2020), https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx.

3. “Need to Know: June 2, 2020,” American Press Institute, June 2, 2020, https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/.

4. “NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/. 

5. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

6. Jimenez, a correspondent and journalist for CNN, was arrested along with his crew by police in Minneapolis while he covered the Black Lives Matter protests there. He was clearly displaying his press pass.  He was detained but later released, with the governor and police apologizing for the arrest. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

7. Letter to Gavin Newsom: https://www.rcfp.org/wp-content/uploads/2020/07/7-8-20-California-Media-Coalition-Press-Attacks-Letter.pdf

8.  It is important to note that the language in the bill is the same as language that is in an existing California bill regarding the press. So far, there is little information on the next steps for these legal groups. Colleen Shalby, “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests,” Los Angeles Times (Los Angeles Times, October 1, 2020), https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests.

9.  Josie Huang was arrested in California while covering a protest, and was pinned on the pavement and handcuffed. The officers said she was “not wearing credentials”, but they were clearly displayed around her neck. Bruce Haring, “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang,” Deadline (Deadline, September 16, 2020),  https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/.
   

Bibliography:

Brenan, Megan, “Americans Remain Distrustful of Mass Media.” Gallup.com. Gallup, November 9, 2020. https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx. 

Haring, Bruce. “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang.” Deadline. Deadline, September 16, 2020. https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/. 

Lovelace, Berkeley. “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise.” CNBC. CNBC, October 29, 2020. https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

“Need to Know: June 2, 2020.” American Press Institute, June 2, 2020. https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/. 

Shalby, Colleen. “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests.” Los Angeles Times. Los Angeles Times, October 1, 2020. https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests. 

Vera, Amir. “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis.” CNN. Cable News Network, May 30, 2020. https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html. 

Letter to Gavin Newsom. Re: Law Enforcement Targeting Journalists during Protests, July 8, 2020. 

U.S Statement of Interest, Garcia v. Montgomery County, March 4, 2013.

U.S. Press Freedom Tracker, October 31, 2020. https://pressfreedomtracker.us/. 

“NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/.