The Media Bite Back: Legal responses to attacks against the media

Published June 2017

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

The insults and haranguing of the media during Donald Trump’s campaign has continued into his presidency, with Trump and various White House officials continuing to disparage the media and its reporting. Elected officials at the state and local levels have taken up the cause as well, with examples including Texas Governor Greg Abbott joking at a firing range that he would carry around the silhouetted target “in case I see any reporters,” and Kentucky Governor Matt Bevin calling a reporter investigating his purchase of a mansion a “sick man” and a “peeping Tom.”

This hostility against the media seemed to reach a crescendo in May, with the arrest of a reporter in the West Virginia statehouse for persistent questioning of Health and Human Services Secretary Tom Price; a physical attack on an aggressive reporter by Montana Congressional candidate Greg Gianforte (whoapologized after winning the election); and shots apparently fired into the newsroom of the Lexington (Ky.) Herald-Leader.

Gianforte’s apology was part of a settlement of a civil suit brought against him by the reporter, Ben Jacobs of the British newspaper, The Guardian. (Gianforte also pleaded guilty in a criminal assault case against him, and was sentenced to a 180-day deferred sentence, 40 hours of community service, 20 hours of anger management, and a $300 fine, and ordered to pay $85 in court fees.) While the civil case was settled, it is one of only a few instances in which journalists have taken legal action against physical or verbal attacks against them.

Another prominent case of criminal charges stemming from an attack on a journalist is the pending cyberstalking and assault with a deadly weapon case against a man who allegedly sent a tweet featuring a flashing icon to journalist Kurt Eichenwald, who has epilepsy. Eichenwald suffered a seizure upon receiving the tweet. According to the criminal complaint, in addition to the flashing icon the tweet included the text, “You deserve a seizure for your posts.” After his arrest, the man apologized to Eichenwald; the criminal charges are pending.

In February, the editor of the Grand Junction, Colo. Daily Sentinel publically threatened to sue a state legislator who claimed that a story in the paper was “fake news” for defamation. But he eventually decided against filing suit, primarily because the legislator would be able to use taxpayer money to fund his defense.

In late 2016, online journalist and commentator Jasmyne Cannick sued the Los Angeles Police Department, alleging that the department’s arrest and detention of her during a November 2014 police brutality protest was in retaliation for her reporting on the department. She was detained overnight, she claims, while other journalists arrested during the protest were quickly released. But Cannick dropped the case in April 2017.

In 2015, a former newspaper reporter in Baker City, Ore. sued the city’s police department for civil harassment, claiming that they undermined his post-journalism career in retaliation for a 2008 editorial he wrote criticizing the department. Argument on motions for summary judgment in the case is scheduled for June 21.

Despite this spate of pending cases brought by reporters accusing defendants of improper responses to their reporting, there have also been such cases in the past. In 2011 the City of Newark, N.J. settled a lawsuit brought by a television cameraman who was arrested while covering a demonstration against street violence.  In 2013, Maricopa County, Ariz. settled for $3.75 million in a lawsuit brought by the publishers of an alternative weekly who had been arrested in the midst of a long-running dispute and critical coverage of Maricopa County Sheriff Joe Arpaio.

Perhaps the most famous cases of criminal proceedings after an attack on journalists came after murders. Three men were prosecuted for the killing of Arizona Republic reporter Don Bolles in 1976. Two were eventually convicted in the murder, with a third pleading guilty to soliciting an act of criminal violence against a co-defendant who testified against him. In 2007 various journalists used their investigatory journalism to name suspects in the murder of Oakland (Cal.) Post editor-in-chief Chauncey Wendell Bailey Jr., resulting in two convictions and one guilty plea.

While murders of journalists for their work are a rare occurrence in the U.S. – unlike many other countries – the recent rhetoric against the media has clearly led to increased hostility that has resulted in some actual physical assaults. Unfortunately, both the rhetoric and the assaults are unlikely to wane in the near future. So journalists and news organizations must be prepared to take legal action when such incidents occur, as means of protecting themselves and the First Amendment.

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.

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