Protests, Free Speech and Press Freedom
Published June 16, 2020
The past few weeks have been tumultuous and tragic, with an ongoing pandemic, large (peaceful) protests against police misconduct and riots in some places that involved destruction of property and looting.
Of course, this is all troubling and traumatic. But from a First Amendment perspective, the direst events were the numerous instances of police, law enforcement officers and (in Washington, D.C.) national guard soldiers (in Washington, D.C.) using aggressive tactics and violence against protesters who were peacefully—although sometimes angrily and loudly—utilizing their First Amendment rights to speak, assemble and air their grievances to the government. It was especially troubling when these aggressive tactics and violence were used against journalists covering the protests.
The U.S. Press Freedom Tracker reports that there were at least 405 total “press freedom incidents” against the media by protesters and/or law enforcement during the protests, including at least 58 arrests, 87 shootings of rubber bullets or other projectiles, 86 physical attacks (54 by police), 53 incidents of damage to equipment or newsrooms, 52 tear gassings, 31 pepper sprayings and 38 other incidents. The investigative web site Bellingcat.com, which focused on law enforcement actions against media, counted 140 incidents of police taking violent or other specific action against at least 157 journalists.
These events of recent weeks have exposed some of the hidden and repressed tensions and resentments in our communities. They have also revealed the brittleness of rights in the face of overzealous police action in tense situations.
This is particularly true for the press. For despite the soaring rhetoric that we often give about the media and their role in American democracy, as a legal matter, reporters generally have the same rights—no more, no less—than the public at large, even when reporters are engaged in their jobs observing or collecting information. Of course, that does not justify the attacks on the press by law enforcement.
“News gathering,” the U.S. Supreme Court has held, “is not without its First Amendment protections. … Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.” But in the same case, the court held 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.” It also stated that journalists “have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.”
The upshot is that, legally, the journalists have the same First Amendment rights as every other citizen in the United States. And while public agencies and public officials often accommodate the press—for example, by issuing press passes that allow reporters greater access to restricted areas than the public generally has—the First Amendment does not require them to do so. On the other hand, courts have consistently held that the First Amendment does prohibit public entities and officials from disfavoring the media by giving reporters less access than other members of the public, or treating journalists differently because of personal or institutional distaste for the particular reporter or the organization for which she works.
In the context of covering street protests, this means that reporters are subject to the same laws as the protesters: they must act lawfully and not commit any crimes, including blocking public streets; they must follow police instructions; they cannot interfere with police activity; and they cannot be on private property without the owner’s permission. And courts have held that the public (and the press) may make video recordings on police actions, as long as the person doing the recording does not interfere with the police.
But the law enforcement officers also have an obligation to allow reporters who are not acting illegally and who are not interfering with the work of the police to do their jobs. This certainly means not specifically targeting journalists for arrest or specifically targeting them with crowd control measures such as tear gas and pepper balls. Media companies and their lawyers rightfully raised objections when the police in Minneapolis, Washington and other cities did exactly that during the recent protests, and most of the journalists who were arrested were quickly released. And already some civil lawsuits have been filed against law enforcement agencies for their actions against the media.
The police and other law enforcement agencies have tough jobs, and those jobs are obviously tougher in the tense situations that we have seen recently. But it’s in situations like these that the First Amendment rights of free speech and assembly, as well other constitutional rights such as the limitations on the police, are truly tested.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication and is Of Counsel to Fenno Law in Charleston/Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 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.