Free Press Doesn’t Mean Freedom to Break the Law, But Police Shouldn’t Arrest Journalists

Published July 2023

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

Last month two reporters for the left-leaning The Asheville Blade in North Carolina were convicted of misdemeanor trespassing for not leaving when the police began clearing out homeless people and protestors from Aston Park on Christmas Eve 2021. This was actually their second conviction on the charge, after they appealed their earlier conviction in a bench trial to a jury. The reporters were each fined $50, and were also—without their knowledge—banned from all city parks for one year.

In recent years there have been several instances in which reporters have been criminally charged and/or arrested while covering protests and other stories, with a major spike with the “Black Lives Matter” protests in 2020. There were also several instances of police taking violent or other specific action against journalists.

During the bench trial the judge in the Asheville case dismissed the reporters’ arguments that their arrests violated the First Amendment. But this is not an ironclad rule. For example, among the multiple criticisms of the Minneapolis police force in a recent U.S. Department of Justice report on the department’s civil rights abuses during the Black Lives Matter protests was one regarding its treatment of the press:

The First Amendment requires that any restrictions on when, where, and how reporters gather information ‘leave open ample alternative channels’ for gathering the news. Blanket enforcement of dispersal orders and curfews against press violates this principle because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.

Unfortunately, the Department of Justice was less vociferous when reporters were arrested during the 2020 protests in Portland.

The U.S. Supreme Court has also been a bit more muddled on the issue. In a 1972 case holding that the First Amendment does not protect journalists from being forced to testify before criminal grand juries (a ruling largely moderated by enactment of state reporters shield laws and later court rulings), the court’s majority opinion stated that while “[it is not] suggested that news gathering does not quality for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated,” the opinion also stated that “[i]t would be frivolous to assert … that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”

Earlier this year, the federal Fourth Circuit Court of Appeals—which covers both North and South Carolina—joined the majority of other federal appeals courts and held that livestreaming and recording police officers’ activity is protected by the First Amendment. The U.S. Supreme Court has not ruled on the issue.

Serious First Amendment issues are at stake when police arrest journalists, which is why numerous free press groups have criticized the arrests and the jury verdict. This is particularly the case when police specifically target reporters for covering police actions, which seems to be what happened in Asheville: police body cam footage shows (starting at 17:20 in the video) that officers decided to arrest the journalists first because they were using a video camera.

The reporters plan to appeal; hopefully an appeals court will recognize the First Amendment issues at stake when journalists are targeted for arrest while just doing their jobs.

A Reprieve for Sullivan: Media lawyers—and this column—have been very concerned for the past several years about the continued viability of the “actual malice” rule for defamation cases brought by public figures, which originated almost 60 years ago in the U.S. Supreme Court’s landmark New York Times v. Sullivan decision.

Various Supreme Court justices and academics have critiqued the decision over the years, but the criticism ratcheted up when then-candidate Donald Trump called for changing libel laws. Supreme Court Justice Clarence Thomas then called for reexamining the Sullivan decision in a 2019 concurrence, and was joined by Justice Neil M. Gorsuch in a 2021 dissent.

But the Court’s seven-member majority reinforced the continued viability of Sullivan in a decision last month in which the Court held that the First Amendment requires that prosecutors in stalking cases must prove that the alleged harasser recklessly disregarded the threatening nature of their statements.

The decision, by Justice Elana Kagan—who had questioned Sullivan when she was an academic—cited Sullivan and subsequent cases that relied upon it for the principle that even false statements are sometimes protected by the First Amendment, since the “actual malice” requirement prevents public figures from recovering for false statements that hurt their reputations, unless the speaker can be shown to have acted with “actual malice.”

Justice Thomas dissented, “to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan,” repeating his earlier charge that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” Thomas also joined a dissent by Justice Amy Coney Barrett based on the standard applied by the majority.

But use of Sullivan and the follow-up cases reinforce the continued viability of Sullivan and the “actual malice” standard, which is some good news for the press, and for the First Amendment.

No “Backsies” in FOIA Law: On Monday, July 10, Judge Jean Toal—a retired justice of the South Carolina Supreme Court, sitting as a circuit court judge in Charleston County—held that under the state’s Freedom of Information Act Charleston County Sheriff Kristin Graziano could not withhold video recordings of jailhouse videocall conversations of felony DUI suspect Jamie Komoroski.

Komoroski was allegedly drunk and speeding on April 28 when she struck a golf cart carrying a wedding party on Folly Beach, killing the bride and injuring three others. She was denied bail and remains in the Sheriff Al Cannon Detention Center. All phone and videocalls in the jail are recorded, although calls between criminal defendants and their attorneys are not supposed to be recorded. Detainees are informed of this.

The issue of access to jailhouse phone recordings first arose in the Alex Murdaugh murder case (which continue to be released). There is no FOIA provision exempting such recordings from disclosure, and a 2011 opinion by the South Carolina Attorney General’s Office concluded that “in the opinion of this office, and consistent with the mandate of liberal construction under the FOIA, it could be concluded that inmates’ personal telephone calls should be construed as being subject to disclosure, especially where some form of express or implied consent can be construed to have been in place.”

Graziano’s office had already released the recordings to The Post and Courier newspaper. But she refused FOIA requests from WCSC and other media outlets, claiming that the recordings had been released in error and that further releases would infringe on Komoroski’s privacy, her right to a fair trial and her physical safety. All of these are explicit exemptions in the FOIA statute. Komoroski also objected to the further release.

The sheriff’s office did not raise these concerns with the initial release. Indeed, it did withhold some other recordings from initial request for these reasons.

Also, it is silly to refuse to release information under FOIA that has already been released. The U.S. Supreme Court has consistently held that governments cannot “claw back” or punish publication of information that they themselves released, even if the release was in error.

There is no apparent error here. Recordings of inmates’ phone calls are public records subject to disclosure under South Carolina law. And once they are disclosed, there’s no “backsies.”

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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