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Police Response to Press at Black Lives Matter Protests Tests First Amendment

FILE - Police clear demonstrators from Lafayette Park near the White House in Washington, June 1, 2020, as they protest the death of African American George Floyd. Floyd died after being restrained by Minneapolis police officers.

During recent protests in Washington over the death of George Floyd in police custody, police in riot gear were videotaped striking a news crew as officers cleared media and protesters from Lafayette Square, an area near the White House.

The footage, captured on June 1, was of a scene repeated in cities across the United States during Black Lives Matter demonstrations following the May 25 death of the 46-year-old African American in Minneapolis.

Journalists have been tear-gassed, hit by rubber bullets and detained. Many say they identified themselves as press or showed credentials that police ignored.

These heavy-handed tactics are not the only issue to test First Amendment protections for the press. In Seattle and Cleveland, news outlets were subpoenaed for unpublished footage, and Department of Homeland Security agents compiled intelligence reports on journalists in Portland, Oregon.

U.S. Park Police in Washington placed two officers on administrative leave amid an investigation into the Lafayette Square incident. The case is one of hundreds that the U.S. Press Freedom Tracker says it is investigating. The data research project is run as a collaboration between the Freedom of the Press Foundation and more than two dozen other press freedom organizations.

The Tracker has received reports of at least 700 incidents involving media at the protests, including more than 100 arrests and at least 114 physical attacks allegedly carried out by police. The scale of incidents is the highest recorded by the Tracker since it was formed in 2017 to monitor incidents in the U.S.

Police chiefs have said it is hard to check credentials, or that reporters were caught up in arrests when officers cleared areas or imposed curfews. Some state governors responded to the incidents by reaffirming journalists’ rights to cover events in their cities.

'Not a few bad apples'

Meanwhile, media experts warn the police response to journalists is in conflict with the First Amendment.

“This is not a few bad apples kind of thing,” James Wheaton, the founder and senior counsel for the First Amendment Project, said, “This appears to be deliberate targeting of journalists.” The California-based non-profit offers free legal service to journalists, artists and activists.

Floyd Abrams, who represented The New York Times in the landmark Supreme Court case over the release of the Pentagon Papers, said, “The fact that the police are reacting, too often, overreacting, to the presence of the press is something as to which there is a genuine or a real and then I would say an enforceable First Amendment problem.”

FILE - A police officer shouts at a video journalist in New York City, June 2, 2020, during demonstrations protesting the death of George Floyd.
FILE - A police officer shouts at a video journalist in New York City, June 2, 2020, during demonstrations protesting the death of George Floyd.

The Pentagon Papers were the focus of a 1971 Supreme Court case where justices ruled against the Nixon administration's attempt to prevent the Times and Washington Post from publishing details of classified documents relating to the Vietnam War.

Some incidents have tested the strength of legislation, such as shield laws, that are designed to protect journalists from disclosing information during the reporting process unless the material is deemed critical to a criminal investigation.

In Seattle, a superior court ruled on July 23 that The Seattle Times and four local stations must turn over unpublished photos and videos to aid law enforcement investigations. The subpoena request met criteria under the state’s law, including that the materials are critical to a case, the court said.

'Serious threat to the First Amendment'

Free press advocates said the ruling set a dangerous precedent that could endanger the status of journalists as independent observers.

Rights groups also condemned the Department of Homeland Security for actions some described as a “serious threat to the First Amendment,” after the agency’s Office of Intelligence and Analysis created dossiers on two journalists covering the demonstrations in Portland.

One day after The Washington Post reported on the incident, the DHS ordered its agents to stop compiling reports on the media.

And a U.S. district judge on Thursday granted a preliminary injunction on federal officers that exempts journalists from orders to disperse, and bars officers from seizing photographic equipment and press passes.

"If military and law enforcement personnel can engage around the world without attacking journalists, the federal defendants can respect plaintiffs' First Amendment rights in Portland," U.S. District Judge Michael Simon said in the order.

The American Civil Liberties Union of Oregon, which brought the lawsuit on behalf of several journalists hit by projectiles or tear gassed while covering demonstrations in Portland, called it a “crucial victory.”

FILE - A protester argues with law enforcement officers as a reporter runs from tear gas during a demonstration against the death of George Floyd, in Saint Paul, Minnesota, May 31, 2020.
FILE - A protester argues with law enforcement officers as a reporter runs from tear gas during a demonstration against the death of George Floyd, in Saint Paul, Minnesota, May 31, 2020.

History of conflict

A “push and pull” between journalists and public officials has existed for more than 200 years, Wheaton, from the First Amendment Project, said.

Within 10 years of the First Amendment, the House of Representatives passed the Sedition Act, making it a felony to criticize the U.S. government. At least 26 people were prosecuted, including the editor of an opposition newspaper. The Act expired in the early 1800s, but other legislation has threatened to chip away at rights enshrined in the First Amendment.

“Abuse of power against journalism is really as old as America itself,” Wheaton said. “It’s an eternal struggle between journalists trying to expose and power trying to hide.”

In 1978, the U.S. Supreme Court case Zurcher v. Stanford Daily focused on whether news organizations had an obligation to turn over information to law enforcement — an issue similar to the Seattle case. The ruling, which centered on a police search of the newsroom of a student newspaper that documented clashes at a protest, found the press was not exempt from warrants.

Two years later, however, Congress passed the Privacy Protection Act of 1980, which required a court-ordered subpoena to access materials from newsrooms.

The decision was seen as a victory for journalists’ rights. But challenges continually arise — something that has been evident in recent months, Abrams said.

“There have been protests off and on throughout American history,” he said. “But the magnitude of the protests since that awful event [George Floyd’s death] has led to probably a worse situation in terms of police denying access or worse in their dealings with the press.”

Trevor Timm, executive director of Freedom of the Press Foundation, a nonprofit that advocates for the rights of public interest journalism, agreed. “This is certainly not a new problem. I think the unprecedented nature here is the size and the scale of it,” he said.

Press protections

While acknowledging the difficulty in ascribing a motivation to each case, the experts said the scale of incidents could be viewed as an effort to limit journalists’ access.

“You prohibit them either by arresting them, or doing this brief detainment where you put them in a van and you release them a few hours later, or you push them back, so far away from the scene,” Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida, told VOA.

Abrams said, “The police sometimes have made the incorrect and, I would say, unconstitutional decision that they're best served by keeping the press away.”

In response to the incidents, groups including the Reporters Committee for Freedom of the Press (RCFP) have called on mayors, police chiefs, and leaders to reinforce policies to protect and reinforce journalists’ rights to cover protests.

“The challenges that officers face in policing during times of civil protest do not supersede any of the rights guaranteed by the First Amendment,” RCFP said in a joint letter addressed to California Governor Gavin Newsom last month. “Moments of crisis demand that we protect the bedrock American ideal of a free press even more zealously,” RCFP added.

Some information for this report came from Reuters.