Reporters sometimes get arrested or detained. (Or in the case of Guardian reporter Ben Jacobs covering a congressional election in Montana, “body-slammed.”)
It seems whenever a big story breaks, a side issue of reining in reporters also pops up. Reporters have been harassed and arrested covering news including Hurricane Katrina, the Republican National Convention in 2008 and Occupy Wall Street. More recently, reporters have had their newsgathering restricted while in public places covering the Ferguson, Missouri/Michael Brown protests and riots and the Dakota Access Pipeline at Standing Rock. Most recently and high profile, Public News Service reporter Dan Heyman was arrested in West Virginia after asking questions of U.S. Health and Human Services Secretary Tom Price.
In some recent cases, reporters have been singled out and excluded from public events. And in several high-profile cases, reporters covering the news were actually arrested.
Arresting or detaining reporters raises both practical and First Amendment concerns for reporters and editors. It can chill newsgathering and stymie the free flow of information. After all, not much news reporting will be done from a jail cell.
Newsgathering is a gray area. In a major case on reporter confidentiality, Branzburg v. Hayes (1972), the Supreme Court wrote that “newsgathering is not without its First Amendment protections, for without some protection for seeking out the news, freedom of the press could be eviscerated.”
These rights are far from absolute — more qualified or situational — and frequently malleable in the face of some sort of governmental command.
Law enforcement officials in some recent cases have charged that reporters were interfering with government operations, engaged in disorderly conduct for refusing police orders and, in at least one case, inciting a riot.
Reporters can wear their press passes and wave First Amendment rights in the face of law enforcement, but there may be no easy answer or panacea for these conflicts. Here are a few quick tips:
1) Know your rights based on geography: Are you in a public forum or a public place — streets, sidewalks, parks, government buildings? Is law enforcement singling out reporters or rounding up reporters with a bunch of other arrests?
2) Identify clearly: Make sure law enforcement or the government officials know you are a journalist; wear your press credentials if you have them. If you do not have credentials, identify yourself and the outlet you represent.
3) Protect your material: Nobody has a right to confiscate or destroy your notes, recordings or video. Today’s journalists need to understand and employ encryption technology for both emails and their devices. Multiple backups or cloud storage can also help protect data, interviews, video or photographs, even from the field or remote locations.
4) Legal help fast: Most importantly, have legal counsel, or management who has access to legal counsel, on speed dial. If you’re on staff for a news outlet, you may have access to lawyers. Independent or freelance journalists may need to secure counsel on their own or with the help of a press rights group or press club the SPJ Legal Defense Fund, Reporters Committee for Freedom of the Press or local press groups.
A reporter’s journalistic task sometimes conflicts head-on with a police command or an arrest. Later, a court may very well rule that the police action was out of line or unconstitutional. But what is a reporter to do in the field? On one hand, reporters know they sometimes have to go places where they are not welcome. And the First Amendment has never been license to trespass or commit other crimes.
Furthermore, nobody — reporter or civilian — will ever win an argument or a fight with a police officer on the street, no matter how strong your argument or facts are. Does this mean reporters have to succumb to every police order no matter how whimsical, capricious or nefarious it might be?
Courts will question the reasonableness of both law enforcements’ and reporters’ actions in these high-tension, controversial cases. Even though few reporters will ultimately be convicted for newsgathering in public places and are often released from jail or custody within hours, arresting a reporter sends a message to other reporters and chills the newsgathering process. These arrests or harassment obstruct the news and could take important information out of public scrutiny.
On the other hand, there may be legitimate concerns for public safety. A reporter running into a burning house would divert emergency resources. A reporter crossing police tape to invade a crime scene could damage evidence. These types of concerns do not accompany protest coverage, though.
In an illustrative 1979 case, the New Jersey Supreme Court weighed in on a newspaper photographer’s arrest after he disobeyed a police officer’s command to leave the scene of a gruesome car accident on the side of a highway. The court wrote, “An officer should, if made aware of the identity and status of an individual as a newsperson engaged in gathering news, be mindful that such an individual has a legitimate and proper reason to be where he is and, if possible, this important interest should be accommodated.”
Meanwhile, the court in this case upheld the photographer’s disorderly conduct conviction. Then again, common sense may also go a long way toward diffusing a difficult situation.
Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University. He sits on the SPJ Freedom of Information Committee.