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.”