Protect Sources by Not Showing Them?
Published Sept. 2020
The past several months of protests in reaction to police shootings have raised several First Amendment issues, including police and protestors physically attacking journalists, police detaining and arresting reporters, and law enforcement agencies seeking media materials such as unpublished photos and unaired television footage in order to identify miscreants.
The latter has led to a current dispute in the Washington state Supreme Court, in which the Seattle Times and several TV stations are refusing to provide their unused photos and footage. Their arguments are based on their rights under Washington’s reporters’ shield law to protect their sources, as well as the general idea that the government should not use the media as surrogates for collecting evidence.
But even when they have not sought outtakes, law enforcement agencies also have routinely been using photos and video that is published, broadcast and/or posted online to identify violent protestors. And even non-violent protestors seen participating in protests and other controversial events have been subject to online and offline harassment, including from opponents who have contacted the participants’ employers and schools and demanded that they be fired or expelled.
So protestors have been responding by hiding their identities. In many cases, this meant wearing masks and neck gaiters before they became widespread ways of limiting Covid-19 transmission and exposure. But for a while now protestors for or against various causes – going back at least to the Occupy Wall Street protests in the early 2010s and protests at the University of Missouri in 2015 – have also been requesting, and in many situations demanding, that they not be photographed.
Legally, the protestors do not have any right to make such a demand. The media do not need someone’s permission to take a photo of them in a public place. While the law recognizes a right to privacy in circumstances and locations in which a person would reasonably expect such privacy, there is no right of privacy for the fact that an individual is present in a public location in which the person can be readily seen. And a person shown at such an event would not have a viable defamation claim for a factual statement that the person was present at a particular event.
But this may be an ethical issue that journalists should consider. For while the media certainly has the right to show participants in protests and other events in public spaces, there may be legal and other consequences for the participants who are shown in such photos and footage.
Media organizations have gone to court to protect their sources, and to protect their unused photos and footage. But journalists may also have to think about the ethical issues that arise from coverage that allows law enforcement to identify participants in public protests, and the consequences that may result for those participants.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant.. He has worked in media law for more than 20 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 of his employers.