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Can Police Stop Journalists From Covering Protests?

Police forming a line during a public disturbance.
By Richard Dahl on June 18, 2020 12:42 PM

To many Americans, the sometimes violent confrontations between police and protesters have been all too familiar.

It happened across the nation in the 1960s and it's flared up more locally here and there since then — most notably, perhaps, in Los Angeles in 1992 and in Ferguson, Missouri, in 2014.

In each, police have often used force in an attempt to exert control. In each, police have often been criticized for going too far.

While these confrontations over the last 50-plus years may look similar, there's been one noticeable difference in the latest round of protests: Far more than ever before, journalists have been attacked and arrested by police, even after they've clearly identified themselves as members of the press.

More Attacks, More Arrests

“It's a scale that we have not seen before," Kirstin McCudden, managing editor of the U.S. Press Freedom Tracker, a nonpartisan website, told TIME. “It's unprecedented in scope without a doubt."

As of June 11, U.S. Press Freedom Tracker counted more than 400 "reported aggressions" by police against the press since May 26, when the protests began. The organization said 79 members of the media were attacked and 25 arrested. Twenty-three pieces of equipment were damaged, and four were searched or seized.

Recollections of veteran journalists who covered earlier protests suggest that police behavior toward members of the press who are covering demonstrations has badly deteriorated.

The Detroit riots in 1967 and the Los Angeles riots in 1992, each covering five days, were far more lethal than the entirety of the nationwide confrontations this year — 43 died in Detroit, 63 in Los Angeles, and about 20 in all the protests combined since May 26 this year — but journalists in Detroit and Los Angeles remember being relatively free to do their jobs.

In Psychology Today, investigative journalist Cathy Scott recalls covering the 1992 Los Angeles riots and being allowed by police to be on the streets after curfew with fellow journalists as long as they didn't get in the way.

"In the process of covering the aftermath of 2005's Hurricane Katrina, where martial law was also imposed on the streets of New Orleans, and while reporting the Rodney King riots (the 1992 Los Angeles riots), never did I or photographers I worked with feel at risk from anyone in law enforcement, nor did the police try to impede our coverage," she wrote.

Lawsuits Charge Constitutional Violations

Although President Trump's ongoing attack on the media is probably playing a role, the task of pinpointing why police are ignoring freedom of the press is mostly a matter of speculation.

Pinpointing how they may be running afoul of the law, however, is an easier task. That's because the First Amendment to the U.S. Constitution says that the press must be free and there have been a long line of court rulings to back it up.

And that's why the cities of Minneapolis and Seattle are now defendants in class-action lawsuits that have been filed by the American Civil Liberties Union.

On June 2, the ACLU filed suit in U.S. District Court against the City of Minneapolis, asking the court to stop police from further violence. The complaint, which lists numerous injuries suffered by journalists, contends that police have engaged in "an extraordinary escalation of unlawful force deliberately targeting reporters."

"This pattern and practice of conduct by law enforcement tramples on the Constitution," the complaint continues. "It violates the sacrosanct right to freedom of speech and freedom of the press that form the linchpin of a free society."

On June 10, the ACLU filed suit in U.S. District Court in Seattle, claiming that the Seattle police had engaged in "unnecessary violence" against peaceful protesters. The complaint went on to say that the attacks were not limited to protesters. "(A)ccredited journalists have also reported being gassed or subjected to flash-bang devices … simply for being present and documenting the protest for the public."

In New York City, meanwhile, the Reporters Committee for Freedom of the Press sent a letter of protest to city officials on June 6. The letter, addressed to Mayor Bill de Blasio and Police Commissioner Dermot F. Shea, asked that they "end the series of police arrests and attacks on credentialed and clearly identifiable journalists in New York City in recent days."

The First Amendment Vs. 'Qualified Immunity'

One of the beliefs about why police are being more aggressive now is the growing acceptance of a legal doctrine called "qualified immunity." This doctrine was initially intended to protect government employees from frivolous lawsuits, but has been used increasingly by police to defend against accusations that they use excessive force.

In its letter, the Reporters Committee argued that the First Amendment trumps any claims to qualified immunity: "The right to record police activity, by the press and public, has been held repeatedly to be 'clearly established' by many courts around the country. Therefore, a police officer or official who violates that right, especially through the use of force, cannot claim legal immunity."

The police have a difficult job, especially when masses of protesters take to the streets. They have a responsibility to keep the peace and they may impose reasonable restrictions on the news media to achieve that task. Reporters who disrupt the police or refuse reasonable requests or demands by the police should prepare to face legal consequences.

But the recent record shows that police too often are attacking and arresting members of the media when they are clearly identified, not being disruptive, and following police directions.

Too often, they are attacking people doing work that is protected by the First Amendment.

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