{"id":3013,"date":"2020-06-15T16:07:53","date_gmt":"2020-06-15T16:07:53","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3013"},"modified":"2020-06-15T16:07:53","modified_gmt":"2020-06-15T16:07:53","slug":"todays-media-landscape-legal-protections-for-the-press-from-arrest-and-police-violence","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2020\/06\/15\/todays-media-landscape-legal-protections-for-the-press-from-arrest-and-police-violence\/","title":{"rendered":"Today\u2019s Media Landscape: Legal Protections For The Press From Arrest and Police Violence"},"content":{"rendered":"

(Source)<\/em><\/a><\/p>\nJournalism is often referred to as the Fourth Estate because of the central role it plays in the political system. From the beginning of the United States, the importance of a free press has been recognized and given special consideration. From Thomas Jefferson\u2019s<\/em><\/a> famous words: \u201c[W]ere it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter[,]\u201d the importance of a free press has been repeatedly affirmed by the nation\u2019s leaders<\/a>.<\/em>\n\nThe importance of journalism to our society is never more visible than during periods of civil unrest. Brave journalists risking their safety<\/em><\/a> to tell the stories of protestors is essential to achieving wide-reaching change through protest. The work of journalists in these situations both amplifies the voices of the protestors and serves as a check on the government\u2019s ability to limit the rights of the protestors. In many cases, police officers who commit violent misconduct would not face consequences if not for video evidence<\/em><\/a> recorded by journalists or ordinary citizens.\n\nHowever, for journalists to serve their essential role during acts of protest, their constitutional right to report must not be infringed upon. Throughout the recent wave of protests following the murder of George Floyd in Minneapolis, we have seen countless instances of police violence against both protestors<\/em><\/a> and members of the media<\/em><\/a>. The US Press Freedom Tracker cataloged over 100 instances of violence<\/em><\/a> against journalists from May 28 to 31. The organization found<\/em> <\/a>that at least 19 reporters had been arrested, at least 36 journalists had reported being shot at with projectiles such as rubber bullets by members of the police, and at least 76 members of the media had reported assaults with 80% being perpetrated by police. Around the country, police officers have targeted media members<\/em><\/a>: shooting them<\/em><\/a> with less-lethal rounds<\/em><\/a>, tear gas, and pepper spray. These tactics have even caused multiple<\/em><\/a> journalists<\/em><\/a> to lose eyes. Unsurprisingly, reporters of color have been treated differently than their white counterparts. On May 29, Black and Latino CNN reporter Omar Jimenez was arrested live on air<\/em><\/a> while asking the police where his crew should set up; meanwhile, his white colleague Josh Campbell, who was reporting nearby, was just politely asked to move.\n\nPerhaps one of the most publicly egregious infringements on the media\u2019s ability to report during this flashpoint was the City of Cleveland\u2019s police department announcing that media members would not be allowed<\/em><\/a> into the city\u2019s curfew zones, which included the entirety of the downtown area. The city\u2019s mayor later reversed the decision<\/em><\/a>, but it was a grave moment that left reporters in Cleveland<\/em><\/a> confused at the contradictory orders. This instance was significant because media members are generally exempted<\/em><\/a> from curfew orders.\n\nImportantly, state restrictions on the press during protests is not something new. In 2017 \u201cnearly half of all press freedom incidents<\/em><\/a>\u2014such as arrests of and attacks on journalists, as well as searches and seizures of newsgathering equipment\u2014occurred at protests.\u201d Likewise, during the 2014 protests<\/em><\/a> in Ferguson, Missouri, reporters faced many of the same obstacles they do today\u2014arrest, harassment, and uses of less-lethal force.\n\nNow, what legal protections do members of the media have in these instances, and do they differ from that of normal citizens?\n\nFirstly, journalists and protestors alike are protected by the First Amendment<\/em><\/a>: \u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances,\u201d which is incorporated<\/em><\/a> to the states by the Fourteenth Amendment. The term \u201cfreedom of expression<\/em>\u201d<\/a> is often used to describe the collection of First Amendment rights not directly concerning religion.\n\nWhether or not the institutional press is afforded different rights than that of the general public is a complicated question<\/em><\/a>. The First Amendment does include \u201cof the press\u201d as a separate clause, but the Supreme Court has routinely held that the institutional press is not afforded a higher standard of protection<\/em><\/a> than that of other speakers. This is clearly borne out in Chief Justice Burger\u2019s concurring opinion in the 1978 case First Nat\u2019l Bank of Boston v. Belotti<\/em><\/a>. The Chief Justice asserts that \u201cThe Court has not yet squarely resolved whether the Press Clause confers upon the \u2018institutional press\u2019 any freedom from government restraint not enjoyed by all others.\u201d But he then goes on to discuss at length his skepticism at the idea that the Framers meant to create a special role for the \u201cinstitutional press,\u201d concluding that there is \u201cno fundamental distinction\u201d between the speech and press clause. Rather, the press \u201cmerited special mention simply because it had been more often the object of official restraints.\u201d Despite this shaky argument, Chief Justice Burger does then correctly point out the fundamental problem with interpreting the Press Clause: how to define the press.\n\nNot every Justice has taken the same view towards the Press Clause, and a few months later in Houchins v. KQED Inc.<\/em><\/a>, Justice Stewart wrote in his concurring opinion: \u201cThat the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.\u201d\n\nDue to the nature of the press, media entities often find themselves as litigants in cases concerning First Amendment rights. Because the courts are reticent to decide cases under the Press Clause, rights are often defined under the speech aspects of the First Amendment even when members of the press are the ones litigating. This has led to a sizeable collection of rights that, while applying to all citizens, have special importance to the press.\n\nImportantly for journalists covering protests, especially those organized because of police violence, there is a right to film the police<\/em><\/a> under the First Amendment. Reporters and ordinary citizens alike can, while in a public space, photograph and video<\/em><\/a> (without audio) anything in plain view. Recording video with audio can have different implications though and some states have passed laws trying to regulate video audio under wiretapping laws<\/em><\/a>. Generally, though, audio recording of the police is allowed<\/em><\/a> because they do not have an expectation of privacy when carrying out their official duties in a public setting. Journalists should still exercise caution because in states such a Pennsylvania<\/em><\/a> conversations in public spaces can be considered private and those could be picked up incidentally while lawfully recording the police.\n\nJournalists must also be cautious while on private property as owners can ask anyone to leave under threat of arrest for trespassing<\/em><\/a>. Police officers can also lawfully order reporters to move or stop their activities, but only if they are legitimately interfering<\/em><\/a> with police operations. Even so, thanks to the Fourth Amendment<\/em><\/a>, police officers cannot usually search the contents of a phone<\/em><\/a> or camera without a warrant, even if arrested. Generally there is a recognized Fifth Amendment right to not give up a device\u2019s passcode<\/em><\/a>; however, there are split opinions<\/em><\/a> on whether or not a person can be compelled to use biometrics\u2014fingerprint or face scans\u2014to open a device. Journalists should also be protected against stop and frisks because police officers cannot initiate a \u201cTerry\u201d stop\u2014as they are called\u2014without an objective reasonable belief<\/em><\/a> that the person is armed and dangerous. If a reporter\u2019s constitutional rights are violated, they could bring a civil suit<\/em><\/a> under 42 U.S.C. \u00a71983<\/em><\/a>, but the offending officer could be protected under qualified immunity<\/em><\/a>.\n\nDespite the Supreme Court\u2019s tendency to neuter the Press Clause, the institutional press is often afforded some special privileges in civic life. Credentialed reporters are often allowed places that the normal public is not, such as in areas under curfew. And whether or not the inclusion of members of the media in curfew orders violates the First Amendment is an unsettled question of law<\/em><\/a>. This suggests that, though the press may not be given unique deference in the courts, as a policy matter some special privileges are often rightly granted.\n\nThe law and these special privileges are still not enough to adequately protect journalists from being inappropriately arrested and harassed by law enforcement during demonstrations of civil unrest. More legal protections are clearly needed, and one that would make a big difference to protect both journalists and regular citizens would be outlawing the use of emergency curfews. Curfews are often used to make otherwise completely legal actions illegal. They are also often enforced selectively<\/em><\/a> and have historically been used in the United States to control people of color<\/em><\/a>. Even if credentialed members of the press are technically exempt from most curfews, they are often not exempt from improper harassment by law enforcement<\/em><\/a> when curfews are enforced. To make matters worse, many tactics police use to enforce curfews such as deploying tear gas and kettling<\/em><\/a> are indiscriminate and affect everyone in an area.\n\nIt is unclear if curfews are even effective in reducing unrest, and some experts believe<\/em><\/a> they can work to create more unrest. One thing is clear though, curfews<\/em><\/a> often<\/em><\/a> lead<\/em><\/a> to<\/em><\/a> increased<\/em><\/a> violence<\/em><\/a> from<\/em><\/a> law<\/em> enforcement<\/em><\/a> against reporters and citizens alike. Laws banning the use of emergency curfews could and should be passed to protect our journalists and our communities.\n\n \n\n\"haydenAbout the Author: Hayden Rutledge is a 3L at Cornell Law School. He grew up in Tennessee and has a political science degree from Belmont University. Hayden has been a member of Cornell\u2019s First Amendment Clinic and enjoys writing pieces on pressing issues and First Amendment concerns.\n\n \n\n \n\nSuggested Citation: Hayden Rutledge, Today\u2019s Media Landscape: Legal Protections For The Press from Arrest and Police Violence<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, (June 15, 2020), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/todays-media-landscape-legal-protections-for-the-press-from-arrest-and-police-violence\/<\/a>.","protected":false},"excerpt":{"rendered":"

(Source) Journalism is often referred to as the Fourth Estate because of the central role it plays in the political system. From the beginning of the United States, the importance of a free press has been recognized and given special consideration. From Thomas Jefferson\u2019s famous words: \u201c[W]ere it left to me to decide whether we…<\/p>\n","protected":false},"author":1,"featured_media":3014,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27,28],"tags":[656,879,891,1224,1253],"class_list":["post-3013","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-first-amendment","tag-jlpp","tag-journalist","tag-press-freedom","tag-protest"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3013","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3013"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3013\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3014"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3013"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3013"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3013"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}