The Legal Restrictions of Newsgathering at Demonstrations

Journalists Arrested While Doing Their Job: The Legal Restrictions of Newsgathering at Demonstrations

By Kieran K. Meadows

Inside the Xcel Center the first week of September, the Republican National Convention was finally getting underway after a slow start because of Hurricane Gustav. Outside the convention center on the streets of St. Paul, Minnesota, a completely different story was unfolding. Thousands of protesters had converged in St. Paul to take part in demonstrations or engage in acts of in civil disobedience. More than 800 people were arrested, including many reporters who were covering the convention story.

“If you were a journalist covering the protesters, then you were subject to any number of these tactics,” said Sharif Abdel Kouddous, referring to police crowd control tactics such as concussion grenades, tear gas, mace, and police on horseback. Kouddous, a producer of the nationally syndicated TV/radio news program Democracy Now!, was arrested twice while covering the protests.

“It made it difficult and dangerous to be on the street,” he said. “The fact that you had a camera with a press ID didn’t seem to matter.”

During the week of the RNC, police detained or arrested nearly 50 journalists, including independent media and traditional media journalists, according to the Minnesota Independent.  Some were arrested violently and sustained injuries inflicted by police, actions that drew a sharp rebuke from the organization Reporters Without Borders. Some journalists were released right away, but many spent at least a night in jail. These events illustrate the challenges journalists face in covering this type of story. A series of legal questions arise around issues of censorship, prior restraint and newsgathering restrictions all related to First Amendment rights.

At first glance, the mere fact that journalists were detained or arrested raises serious concern about freedom of the press. Attributes of censorship include: (1) Imprisonment or detention of journalists; (2) Not allowing journalists to do their jobs; (3) Threat of harm to journalists who act independently; (4) Self-censorship.

The first three are relatively self-explanatory and evident in this case. The fourth addresses the chilling effect the detention of journalists can have. Kouddous explained how he felt about returning to cover the story after he had been arrested the first time.

“It makes it difficult the next time you go out on the street. Do you want to risk arrest again? Do you want to risk being charged again? What if you have to go to trial?” he said. “This is something you have to consider when you are doing your job. At one point, I thought twice about staying. But I decided to stay because it was an important thing to cover.”

Because journalists’ arrests in St. Paul did not involve publishing material but rather newsgathering, the issue of prior restraint should be of little concern. Yet the Supreme Court’s decision in the case Near v. Minnesota is still relevant. The court said that prior restraint is not constitutional except in a narrow set of circumstances including national security, obscenity, and public order.

Protecting public order is cited as a main defense of the police response to the RNC protests. At a forum sponsored by the Society of Professional Journalists three weeks after the RNC, St. Paul Deputy Mayor Ann Mulholland said that the mayor “believes that police did what they needed to do in the name of public safety.”  St. Paul City Attorney John Choi reiterated this defense when he said that it is an officer’s responsibility to protect public safety and control the scene.

“They have a right to maintain public order but they were definitely causing a fair amount of chaos,” said Nicole Salazar, another producer of Democracy Now! who was arrested even though she was holding up her press pass and shouting “Press” repeatedly. Salazar’s camera recorded her own arrest. Moments before her arrest, she can be heard asking, “Where are we supposed to go?”

The city attorney’s office said that police had probable cause to make the arrests but that the city would not seek to prosecute the journalists, including Kouddous, Salazar, and Democracy Now! host Amy Goodman. But the threat of arrest alone not only prevents journalists from doing their job, it also hurts the public, Goodman said.

“Reporters have to be able to put things on the record without getting a record,” she said.

While in theory this should be true, it becomes a lot more difficult in practice, especially in tense situations in which police are afraid of losing control. The courts have generally sided with local authorities when it comes to newsgathering restrictions, yet in terms of First Amendment rights, this area of the law is sometimes a gray area. If someone disobeys a lawful order, they will be arrested, and that is up to the individual officer’s discretion, said Assistant Police Chief Matt Bostrom at the SPJ forum.  Even though the press plays a special role in society, courts have said the First Amendment does not protect reporters engaged in newsgathering from arrest when they fail to obey lawful commands of police.

Journalists arrested during the RNC protests were charged with either disorderly conduct or misdemeanor remaining present at an unlawful assembly. In order for a journalist to be arrested and charged, one would presume that police gave a lawful order to disperse prior to making the arrest.

It is not entirely clear this was the case, according to some eyewitness accounts. Journalist Ted Johnson, who was also arrested at the protests, wrote in Daily Variety, “I didn’t recall hearing an officer announce on a bullhorn … those who do not leave are subject to arrest.”

What these arrests teach us is that there needs to be better communication between police and journalists, who are both trying to do their jobs. Police need to maintain order by having people comply with their lawful (which implies appropriate) commands. Journalists need to be unfettered in their attempts to tell the story of those engaging in peaceful dissent. These two groups need to somehow reconcile their legal duties.

Of the decision not to prosecute the journalists who were arrested, Mayor Chris Coleman said it “reflects the values we have in St. Paul to protect and promote our First Amendment rights to freedom of the press.” Some journalists probably wish he set that policy forth in the week preceding the RNC.

In a public briefing in front of the City Council almost two months after the convention, Police Chief John Harrington praised officers for using restraint yet acknowledged that it would have been helpful to have criteria worked out to identify working journalists.