Journalists, Protests, Law Enforcement, and Freedom of the Press

Episode Notes

Transcript

05/01/21

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David Bralow: As we’ve seen and most particularly seen almost very dramatically in January 6th protest in the capital and with the coverage of the social justice movement, it is that role of a surrogate that becomes very, very important and requires protection.  And so, what I would say is while the First Amendment is generally protects all citizens, there is this special role carved out by the media when it acts as that surrogate to be able to provide information of significant public importance to the general public.

Shannon Jankowski: The whole idea underlying the First Amendment is the ability to record and disseminate information of public interest that has public value.  And as long as the journalist or the citizen is not violating generally applicable laws, they’re not interfering with the police officer’s ability to make an arrest let’s say or to protect public safety as long as they are abiding the law, they have a right to record this kind of public activity.

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network.  I’m Craig Williams coming to you from Southern California.  I write a legal blog named, “May It Please the Court,” and have two books out titled, ‘How to Get Sued’ and ‘The Sled’.  Social justice issues have been at the forefront of protests across our nation recently.  In order to report on these protests, journalists have been on the front lines of that action.  And due to a lack of public trust, journalists are often targeted by law enforcement or counter protesters.  American broadcast journalist, Walter Cronkite, famously said freedom of the press is not just important to democracy.  It is democracy.  So, what are the rights of journalists during protests?  What about public citizens?  Today on Lawyer 2 Lawyer we’ll be discussing incidents of mistreatment of journalists by law enforcement during recent protests.  We’ll explore freedom of the press generally and, in the context of protests and time permitting, we’ll talk briefly about the legality surrounding the filming and photographing of police by citizens.  To do that, we’ve got a great show for you today.  Our first guest is Shannon Jankowski.  She’s the E.W. Scripps Legal Fellow at Reporters Committee for Freedom of the Press.  In addition to assisting the organization in its amicus and national litigation work, Shannon focuses on supporting local enterprise and investigative journalism including bolstering access to public records and encouraging greater government transparency.  Welcome to the show Shannon.

Shannon Jankowski: Thank you. I’m very pleased to be here.

J. Craig Williams: And we’re happy to have you.  Our next guest is David Bralow, Legal Director for the Press Freedom Defense Fund and Senior Vice President of Law for the First Look Institute, Incorporated.  David brings a wealth of experience in media law including First Amendment expertise, national security issues, freedom of information act prosecutions and appeals, defamation, and privacy.  And welcome to the show David.

David Bralow:  It’s really great to be here.  Thanks for inviting me.

J. Craig Williams: We’re happy to have you just as well.  Well, Shannon, let me ask you a question first.  The First Amendment says, congress shall make no law abridging the freedom of the press.  How do protests abridge freedom of the press and the arrests that are happening in the protests?  What’s the foundational legal basis for this?

Shannon Jankowski: Well, the First Amendment protects a general right to gather and disseminate news.  So, to the extent that journalists are being arrested or being impeded, threatened, harassed from being able to gather and disseminate the news, their First Amendment rights are being violated.

J. Craig Williams: Alright.  David, what’s the basis for journalism?  How do journalists define themselves?  How do you become a journalist as a blogger or journalist?  What’s the range of people that are protected by this amendment?

David Bralow: Well, let’s start with some basics.  The First Amendment protects everybody, not simply journalists and that to the extent the journalists have specific or special rights.  They’re often rights that are granted by statute rather than by the First Amendment.  We have to think about the First Amendment as being protective.  But as just to add to what Shannon was talking about, the First Amendment actually guarantees a right to collect and create content and news for the purpose of informing the people of the country.  And particularly in a protest situation, there is this concept that both news organizations in particular have a right of access to that particular public event because it acts as a surrogate.

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And as we’ve seen and most particularly seen almost very dramatically in January 6th protest in the capital and with the coverage of the social justice movement, it is that role of a surrogate that becomes very, very important and requires protection.  And so, what I would say is while the First Amendment is generally protects all citizens, there is this special role carved out by the media when it acts as that surrogate to be able to provide information of significant public importance to the general public.

J. Craig Williams: Shannon, let’s talk about how we got here.  I really do want to get to what’s happening on the front lines.  But, what’s causing this problem?  How did we get from Walter Cronkite who everybody trusted to Donald Trump saying that journalists are the enemy of the state?

Shannon Jankowski: Well, you know, a lot of this is just a speculation.  But, you know, one sort of can imagine the new cycle is very fast moving today.  You have 24-hour news.  You have news via social media.  A large increase in the number and variety of news outlets and I believe that, you know, this probably has led to unfortunately.  You know, in my opinion, it’s a wonderful thing because it’s led to an increase in information that’s available.  It has provided a voice for those who have been marginalized, particularly minority groups, people of color, individuals in maybe more rural areas that have not always been able to have their stories told on the national broadcast with Walter Cronkite.  So, in many ways, this expansion of the availability of news has been a wonderful thing.  But to that end, it also means that sometimes people are telling stories that may run afoul of others political viewpoints and, unfortunately, when you have individuals who are highly prominent who dislike what might being said about them.  There has been rhetoric as we certainly have seen from the prior administration in particular sort of categorizing news that they did not like as fake news or brandishing this notion of journalists being the enemy of the people.  But, at the end of the day, this unfortunately what, you know, really was envisioned as the marketplace of ideas under the First Amendment has become something of a dangerous ground for journalists and we’ve certainly seen that this increase in hostility from some groups towards journalists in the press have led to significant increase in attacks and assaults against the press, particularly when they’re covering protests.  And the U.S Press Freedom Tracker, for example, over 1,000 press freedom incidents were reported to the Press Freedom Tracker in 2020 last year.  So definitely, this is an alarming trend and, certainly, the press and the public — the public needs the press more than ever and the press also needs the public and lawyers and everyone to really step up and recognize the important and vital service that they’re providing.

J. Craig Williams: David, who’s a journalist?  Is it someone who just simply signs on and says, you know, here I am with a blog and I haven’t signed on to any ethical codes or I don’t have any education in journalism.  I’m just going to say I am and, therefore, I am or is it somebody who works for CNN who gets arrested at the protest?

David Bralow: This is a debate that has been around since the desire for news organizations to have specific state shield laws that prevent people from subpoenaing or gathering journalism information who is entitled to these “privileges.”  You know, there are various state statutes under various shield laws that define journalists as people that represent news organizations.  I think it’s important to look at the overall function of what an individual is trying to do.  If what an individual is trying to do is provide information of significant public concern for the purposes of educating a body politic, I think that’s what the First Amendment is designed to protect.  And, sometimes, we get lost in this concept of this person is representing CNN and is, therefore, a journalist and this person is representing a very small local or hyper local news organization and, therefore, isn’t a journalist, and I think that’s actually the wrong inquiry.  The inquiry should be what’s the overall function of the purpose of this individual and what is the information that they’re trying to curate and provide to their communities so that their communities can inform those that govern in such a way is that those that govern can make decisions that are consistent with the will of the people?

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And so, I know that’s a fuzzy answer because I think the question of who’s a journalist is a fuzzy is a difficult question and most particularly in the context that we’re talking about in terms of covering social protests.

J. Craig Williams: Right.  I mean, you know, it’s simply because I have journalists plastered on my chest in big letters like police do in a protest.  Is that enough?

David Bralow: Well, you know, it’s interesting and maybe Shannon might have some more information about this.  But this question about who is a journalist and who is entitled to have these particular protections was raised most recently in the attempt for Minneapolis journalists to prevent the kind of targeting of individuals.  And I think there was a TRO, a Temporary Restraining Order, that was issued that sort of works at the other way that a journalist was anybody that the law enforcement entities would reasonably believe to be a journalist.  And, therefore, it had suggested some of those in Disha would be press passes or even just basically having a press identification or fulfilling the role of a press with a camera and a camera crew.  Shannon, do you have more on that?  I know the Reporters Committee was involved in that particular injunction action.

J. Craig Williams: And, Shannon, let’s talk also talk about what’s going on in the front lines with Carolyn Sung, the CNN Producer who’s been arrested and now is, you know, embroiled in this TRO and some of the things David has been talking about?

Shannon Jankowski: Yeah.  I mean, one of the problematic issues exactly what David said that has come up both with respect to Minnesota but also last year in Portland, Oregon with respect to the index newspapers case where there was a similar restraining order that was issued, which prohibited a law enforcement from arresting or harassing journalists who

were trying to cover protests there.  This issue of do you need press credentials and how is the law enforcement supposed to be able to identify who is and who isn’t a journalist is something that Reporters Committee has been very vocal about arguing is not the appropriate standard to take, as there are many freelance journalists who are just going out to cover a story they maybe have not lined up an outlet that’s going to take that story yet.  There are student journalists that oftentimes don’t have what might be known as traditional press credentials.  And as David was speaking to before, it’s about the function that you’re performing.  That’s really what we should be looking at and not do you have a press pass that was issued by CNN or whatever other news outlet.  The law enforcement thinks is legitimate.

J. Craig Williams: Shannon, let me jump in here and ask a quick question about that.  George Floyd had a 17-year-old girl that stood there and filmed him for 9 minutes and 29 seconds on George Floyd’s neck.  There’s no stretch of the imagination that young lady was any type of a journalist prior to the time she picked up her phone.  Was she a journalist while she had the phone filming that incident?

David Bralow: Butting in for Shannon, and I apologize Shannon and please I just want to argue with the premise.  The premise ought to be did that woman have the right to record an officer fulfilling a public duty.

J. Craig Williams: Right, exactly.

David Bralow: As opposed to whether this person is “a journalist” or not.  If we understand the idea of more information is better for people in community to make decisions about how they’re being governed.  Then, the question about who’s a journalist falls away and the concept of what is the right to record becomes the more seminal issue.  Shannon, I’m sorry.  The question was addressed to you and I butted in.  So, please forgive me.

Shannon Jankowski: No, not at all.  I agree wholeheartedly and that’s precisely the point that I think we would agree with as well at the Reporters Committee.  The First Amendment, and as you said earlier David, the First Amendment doesn’t just protect journalists.  Obviously, the First Amendment protects everyone and that includes citizens.  And, in fact, the First Circuit has ruled a couple of times most recently at the end of last year in Project Veritas v. Rollins.  Both journalists and public citizens have the right to record the police while they’re in the public performance of their duties that this is a vital public service and that this information should be protected under the First Amendment.  And, in fact, according to the First Circuit is protected under the First Amendment.  So, I agree.  The question isn’t really — and that’s why do you think these types of TROs are really problematic when they get into the idea that they’re only going to respect your rights to record the police or to record what’s happening in a protest if you are a journalist with a national news or local news outlet and have a press pass.

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The whole idea underlying the First Amendment is the ability to record and disseminate information of public interest that has public value.  And as long as the journalist or the citizen is not violating generally applicable laws, they’re not interfering with the police officer’s ability to make an arrest let’s say or to protect public safety as long as they are abiding the law, they have a right to record this kind of public activity and it shouldn’t turn on what their job title is or what type of credential they have if they have any at all.

J. Craig Williams: David, what kind of remedies are available to people that are arrested journalists included for wrongful arrest if you’re there filming?

David Bralow: The issue really becomes where — I’m going to answer the question, but it’s going to take some throat clearing to get there because there are several issues that are sort of table setters.  One as Shannon has also indicated various circuits in the United States almost all the odd circuits believe it or not have recognized this “right to record”.  It has been recognized either under a constitutional right of access to information or a more general First Amendment right.  Those rights have been either abrogated by reasonable time, place and manner restrictions or if it’s a constitutional right of access theory, they’ve been abrogated by some “compelling interest” that’s narrowly tailored.  That’s the confines of the right to record as recognized by the odd circuits.  Believe it or not, the even-numbered circuits of the United States, some of the district courts below have all suggested that maybe this right to record is established, but the circuits themselves, the appellate courts haven’t quite established them.  And the reason why I’m setting the table for that is that there are several remedies.  One remedy that we’ve talked about is an injunctive remedy against the police organization, but the remedy that most people want to see happen is a money damages remedy most particularly against perhaps the individual or individuals who have perpetrated the violence against the reporters.  To do that, there needs to be a demonstration of a clearly established right.  And because these even-numbered jurisdictions have not necessarily established that right, this type of money damage remedy may not be available because of this concept of these officers have and we’ve seen this phrase repeatedly in other contexts in the social justice types of situations, a qualified immunity.  And so, yes, there could be an injunction remedy, but the remedy that would really create some disincentives for the type of violence that we’re talking about is a money damages remedy that arises on an individual responsibility basis.  And so, that was a very long-winded way of saying injunction civil rights lawsuit and maybe perhaps in a First Amendment based either on the abridgment of your Fourth Amendment rights for search and seizure or based on a violation of your First Amendment rights and perhaps even a First Amendment retaliation claim.

J. Craig Williams: Shannon, the Attorney General has announced that he’s going to do a thorough review of the Minneapolis Police Department.  I’m assuming that some of that’s going to include what’s going on here.  What is going on in your neck of the woods with your committee to make that happen?

Shannon Jankowski: We have been in very close contact with media lawyers in Minnesota and have been working with them to communicate with public officials there including Governor Walls and law enforcement to curtail and really raise the issue of what’s been happening to journalists on the ground in Minnesota and, of course, citizens as well in connection with the protests that happened last year due to the death of George Floyd and then recently the protest surrounding the death of Daunte Wright, a prominent media lawyer in Minneapolis.  Leita Walker, who is a former colleague of mine, wrote an excellent letter which several media entities joined onto including the Reporters Committee sort of outlining the injuries that have occurred to journalists while they have been covering protests encouraging and, in fact, advocating very strongly that the government of Minneapolis of Minnesota I should say and that the Minnesota law enforcement take this very seriously and, certainly, news coverage of this has led to.  I feel it’s probably safe to say that the news coverage of this has led in part the Attorney General’s office to look into the practices by Minneapolis law enforcement and Minnesota law enforcement in general.

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But, yes, we are definitely advocating and working with as many free press and media law partners as we can to try to ensure that, not just in Minnesota, but we’ve also sent similar types of letters across the country particularly last year when journalists rights were being impeded across the country with respect to the social justice protest last summer.  This is something that we take an active role in trying to bring these issues to the attention of the appropriate governing bodies and ensure that policy can change going forward.

J. Craig Williams: Well, thank you for that.  It looks like I’ve read through some of these letters and they are very well pointed and directed I think resolving these problems.  David, I know that I’ve read also that the Press Freedom Defense Fund has partnered with the National Press Photographers Association to take some action.  Can you tell us about that?

David Bralow:  First I act as a result of the social justice protests during the summer.  The Press Freedom Defense Fund and the National Press Photographers Association created a project, whereby, we would provide legal defense literally the financial resources for reporters and photographers or journalists who had been arrested as a result of these protests to help provide them with the resources to be able to adequately defend themselves.  Not all of these individuals were from large news organizations and, in fact, many of them were from small news organizations and news organizations that represented or worked towards minority communities that are underrepresented.  So, we have provided legal defense for those particular individuals.  We have also assisted in creating a network for strategic litigation both in D.C. and in New York.  There are some 1983 lawsuits that were part of this project.  And then, we also are involved in a very exciting project that also includes an organization of law schools throughout the country called the Free Expression Legal Network.  What this project is doing is actually charting all the various police policies in the 50 largest jurisdictions of the United States to actually see whether those jurisdictions recognize the right to record, a right to assemble, whether those jurisdictions, those police organizations have restrictions on equipment, whether in the course are there restrictions on seizing work productive journalists like their photographs or videotapes, any other procedural protections like recognizing that journalists should not be kettled in a mass protest or they should be exempt from dispersal orders or curfew orders where that study group is also taking a look at how do these policies work on a national level in a state and local level.  The fact that a police organization might have a policy that recognizes these rights doesn’t necessarily mean that that organization still isn’t consistently involved in episodes of violence directed at reporters and trying to figure out what’s the best way to create a training and outreach program that would allow for both community building and understanding of how to actually work with news organizations in these types of protests.  So, that is a project that’s involving both NPPA, the Press Freedom Defense Fund, and the Reporters Committee, and I think it’s a really exciting thing that we’re working through.

J. Craig Williams: Fantastic work and sounds like it will be of good help to a lot of people that get into these troubles. Well, Shannon, let’s talk briefly about what steps should citizens and journalists take when they are confronted with police and arrest?  What’s the appropriate things that should be said?  What should they not say?

Shannon Jankowski: Well, we generally advice journalists in particular and this has become something of a controversial point in recent, the last year in particular, but we generally always advice journalists that they should have their — to the extent they have and they should have their press credentials on them and have them visible simply because the police to the extent that they are aware of the First Amendment protections or if there’s a TRO in place like there is in Minnesota and there was in Portland that certainly will alert the police to the fact that you are a journalist and to the extent that there are arrests or any kind of crowd control efforts that might sweep up citizens —

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That having that press credential visible should put the police on notice that you are a journalist and, for example, if there are curfew orders that exempt the press that you should not be forced to disperse pursuant to that curfew order.  That said, we certainly know that press has everything that you have mentioned previously about what happened recently in Brooklyn Center and that have happened across the country last year.  The police have not always behaved as we would like them to with respect to respecting the press.  And so also, protesters and citizens oftentimes may target the press.  So, it is definitely a difficult situation for them.  Safety is always paramount, but we certainly from a legal perspective advise that it’s a best practice to have your press credentials visible.  We certainly recommend both to press and to citizens keeping safety in mind we have tips like, you know, setting an alarm to go off on your phone especially if you’re a photojournalist every 15 minutes just so that you’re looking around.  You’re staying savvy to what’s going on around you.  You are getting yourself out of a potential kettling situation, for example.  We recommend that people have a kind of a buddy system that you have someone who’s on call, who’s expecting to hear from you periodically.  So, to the extent something happens and you are arrested or detained or you are in a kettle, that person can be making the necessary calls to law enforcement to try to track down where you may be to the extent you’ve been detained.  And, of course, the Reporters Committee has a legal hotline.  We recommend that if something were to happen and you were to need assistance in an emergency situation, we always recommend the journalists call our hotline.  We have connections with media lawyers and criminal defense lawyers in all across the country.  And to the extent that there is an issue and you don’t have another legal contact calling Reporters Committee, we work to get you or someone who is the person who’s working on your behalf to get you or that person connected with an attorney who can try to help get you out of a situation if you are arrested or detained.

J. Craig Williams: Thank you.  That sounds like a great advice.  Well, it looks like we just about reached the end of our program.  So, at this point, I’d like to invite Shannon and David to share their final thoughts and their contact information.  David, let’s start with you.

David Bralow: My overall thought about this issue is that there has to be a greater amount of communication in each community.  This is a problem that doesn’t resolve necessarily by law, but it does resolve itself by both reporters, members of the social justice communities, and members of the various municipalities sitting down and actually talking about what are the issues and what are the goals of an informed public and the benefits of that informed public and that really ultimately ends up being an effort in training in it and an understanding and community building.  And I think, ultimately, these issues are ones that relate to that type of polarization to reiterate the Press Freedom Defense Fund does have this program that provides resources to reporters and other journalists that have been caught in these situations, and we also have the same type of referral network or a referral network as well where we provide actual counsel and sometimes provide the legal resources to actually pay for that counsel.  Feel free to contact us at [email protected].

J. Craig Williams: Great.  Thank you very much.  And that’s B-R-A-L-O-W.

David Bralow: B-R-A-L-O-W, yeah.

J. Craig Williams: Wonderful.  And Shannon, your final thoughts and your contact information.

Shannon Jankowski:  Yes.  Well, I agree with all the points that David made.  This is a much broader issue that all of these situations have certainly brought to our attention and like you – I think like you alluded to earlier on, you know, we used to just think of Walter Cronkite and just really assume that these sort of First Amendment free press protections were given, and we’ve certainly learned that there’s a lot more communication as David said to be done in order to find the best path moving forward.  And as for being able to get in touch with me, you can find me on Twitter shan_jan.  You can also find me at [email protected].

J. Craig Williams: Wonderful.  Thank you.  Well, as we wrap up, I’d like to thank our guests, Shannon Jankowski and David Bralow, much pleasure having you both on the show today.  Thank you.

David Bralow: It was great.  Thank you.

Shannon Jankowski:  Thank you very much.

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Podcast transcription by Tech-Synergy.com