Reporting on protests is no easy job—just ask the thirty-six reporters arrested while covering the Occupy movement, from New York to Boston to Nashville and beyond. Amid clashes between protesters and the police, the reporters ran afoul of the law. They went places where they weren’t supposed to go, and they did things they weren’t supposed to do. Or so claim the police.
OWS might not signal the high-water mark of press freedom, but it’s brought that freedom into sharp focus, through the prism of protest. What rights do reporters have to gather the news? Do they need credentials? Do reporters have the right in public places to record police activity? If a police officer unlawfully interferes with a reporter while she’s gathering the news, can the reporter sue the officer? Below, Jonathan Peters, an attorney specializing in First Amendment law, explains.
Does the First Amendment provide reporters a general right to gather the news?
Eh, sort of. The First Amendment guarantees the freedoms of speech and press, among others, and their protections focus mainly on the right to communicate—the right of newspapers to publish, the right of radio stations to broadcast, the right of ordinary citizens to criticize the government. Less clear are the protections for gathering information.
The First Amendment emerged at a time when the press did little newsgathering, and the amendment’s legislative history, sparse as it is, doesn’t suggest that press freedom includes newsgathering. But gathering is related to communicating, because you can’t communicate what you can’t gather. Justice Byron White put it this way, in the 1972 case Branzburg v. Hayes, “without some protection for seeking out the news, freedom of the press could be eviscerated.”
Although the Supreme Court has acknowledged that newsgathering is important, it has not determined the extent to which the First Amendment protects it. The cases in this area make just one thing clear: reporters do not enjoy greater rights than members of the public to gather information.
In large part, reporters enjoy First Amendment protections as agents, the “eyes and ears of the public,” as Chief Justice Warren Burger said when announcing the judgment in the 1980 case Richmond Newspapers v. Virginia. The idea is that most people can’t get for themselves the information they need to be informed and to participate in the political process. They have to rely on the press, whose right to gather and publish is the public’s right to do the same.
Okay, so, what rights do reporters have to gather the news at OWS protests? Do they need credentials?
Most of the OWS protests have unfolded on public sidewalks and in public parks, the favored children of First Amendment law. (Zuccotti is privately owned but dedicated for public enjoyment.) In those places, which are called public forums, the press is free generally to gather the news. What makes public forums so special is their historical significance, noted by Justice Owen Roberts in a concurring opinion in the 1939 case Hague v. Committee for Industrial Organization: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
In public forums, then, the protesters can do their thing, and the reporters can do their thing, documenting and recording what easily can be observed, free from government interference. However, they can’t do whatever they want. The government may impose reasonable time, place and manner restrictions on the use of public forums (e.g., the city council may pass an ordinance requiring a permit to use sound amplifiers; hence the OWS human microphone).
Assuming the protest is in a public forum, reporters don’t need credentials to cover it—they enjoy a right of access along with the public. They don’t need permission to be there, nor do they need permission to engage there in newsgathering activities. Still, credentials are a good idea, though I hesitate to say they can’t hurt. The NYPD used them, after all, to corral reporters during the Zuccotti raid.
It’s important to understand that credentials, even those issued by the police, won’t immunize reporters from arrest. Rather, they can grant the right to cross police lines, at the discretion of the on-site officers, and they can establish why the reporter is there (i.e., to gather the news rather than to participate in the protest). In many cases, the police will respect the rights of credentialed reporters and give them the space they need to work. Too often, though, the OWS protests have been a different story.
What happened to the reporters arrested while covering OWS? Can they use the First Amendment as a defense?
Josh Stearns, associate program director at Free Press, has for over three months tracked reporter arrests at OWS protests, and as of this writing the total is thirty-six. In all but a few cases, prosecutors dropped the charges, and the reporters didn’t have to appear in court. Of course, that the charges went away does not mitigate their seriousness. The arrests alone can send a chilling message: Gather the news at your peril.
For the reporters still facing charges, the First Amendment wouldn’t be of much help, not to excuse a crime or to invalidate a charging statute. The Supreme Court has ruled consistently that laws applying to the public also apply to the press—reporters may not hide behind the First Amendment if they commit crimes while gathering the news. Often, the best defenses are those available generally in criminal cases (e.g., challenging the basis of the arrest). However, if the charges failed or were illegitimate, the reporters could file civil suits against the government based on the First Amendment. More on that later.
In most of the OWS cases, the reporter arrests fell into two categories: trespassing and disorderly conduct. They’re the McDonald’s of protest arrests, the garden variety. Typically, trespassing covers the intentional entry onto land without the possessor’s consent, while disorderly conduct covers a wide range of acts, including the failure to obey lawful orders from the police. Every year, reporters face those charges. Some of them are legitimate, and others are deliberate attempts to censor the press. The OWS cases, taking them as a whole, appear to be a little of both.
To avoid charges, reporters should be mindful of where they go, they should obey all legitimate orders and they should be careful not to interfere with the police. But they don’t have to walk on eggshells. For example, in most jurisdictions the police may not arrest a reporter for disorderly conduct just because the reporter’s behavior is annoying or distracting; the behavior must be truly obstructive.
Do reporters have the right in public places to record police activity?
Yes! That was the very question addressed in the 2011 case Glik v. Cunniffe, decided by the US Court of Appeals for the First Circuit. Attorney Simon Glik was arrested for using his cell phone to record three police officers arresting a teenager in the Boston Common. The charges against Glik, among them a violation of the Massachusetts wiretap statute, were dismissed.
Glik filed a civil suit against the city and the police officers, claiming in part that his arrest violated the First Amendment. The officers claimed immunity from the suit. They argued that when Glik was arrested, it was unclear that the First Amendment guaranteed the right in public places to record police activity. The federal appeals court disagreed.
Judge Kermit Lipez, writing for the panel, said recording police activity promotes the discussion of government affairs; that such discussion is important because the police enjoy discretion that might be “misused to deprive individuals of their liberties”; that recording police activity “aids in the uncovering of abuses”; and that the police “are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights.”
Lipez noted that the right to record police activity “is not without limitations. It may be subject to reasonable time, place and manner restrictions.” But he said that in Glik’s case the recording “fell well within the bounds” of First Amendment protections. Glik recorded the officers from a distance and did not interfere with them. Plus, he was in the Boston Common, “the apotheosis of a public forum,” Lipez wrote.
What happens if a police officer unlawfully interferes with a reporter while she’s gathering the news? Can the reporter sue the officer?
Yes, but success isn’t guaranteed. The reporter would file a “1983 action,” under federal statute 42 U.S.C. § 1983. It allows people to sue government officials in civil court for depriving them of constitutional or civil rights. The reporter would be the plaintiff, and the police officer would be the defendant. Basically, the reporter would claim that by unlawfully interfering with her newsgathering (e.g., denying her access to a public forum for no good reason), the police violated her First Amendment rights.
The reporter would ask the court for a declaration to that effect and for money damages. She might also ask the court to require the police to implement procedures to ensure that the press can gather the news free from interference (i.e., she would demand formally of the police what the New York Times and others demanded informally of the NYPD, in late November). So the effect of the lawsuit would be to crystalize—to say who’s right, who’s wrong, what should be done in the future.
But I said success isn’t guaranteed. First, it can be difficult for a reporter to establish that by interfering with her newsgathering, the police violated her First Amendment rights. In the example I gave—denying access to a public forum for no good reason—the court would consider whether denying access to the forum infringed the right to be there. Public forums make an easy example, but in other areas the courts have to make closer calls. Second, it can be difficult for a reporter to establish that the interference harmed her. She’d have to explain intangibles like timeliness and newsworthiness, which to many people lie somewhere between abstractions and inside baseball.
Notably, the “1983 action” has been used in the protest context. Consider the 1995 case Fordyce v. City of Seattle, decided by the US Court of Appeals for the Ninth Circuit. Jerry Edmon Fordyce recorded a protest march for a public-access channel (he said he was participating in the protest too). After recording the police and bystanders on the sidewalk, Fordyce was arrested for violating a state wiretap statute. The charges didn’t stick, so he filed a “1983 action,” and the federal appeals court ruled that police officers could be held liable for interfering with a reporter’s ability to videotape a protest march.