As protests over racial justice have swept America, many are learning the hard way what their First Amendment rights entail. Like the freedom of assembly and freedom of speech, the free press has more than a few caveats too.
Several high-profile incidents of journalists getting injured or arrested over the last few weeks have provided an insight into some of those caveats. From TV reporters getting arrested and shot by rubber bullets in Minneapolis, to public radio reporters getting the same treatment in Pennsylvania, Virginia, and California, American journalists have found themselves at the violent intersection of state and social unrest.
I just got hit by a rubber bullet near the bottom of my throat. I had just interviewed a man with my phone at 3rd and Pine and a police officer aimed and shot me in the throat, I saw the bullet bounce onto the street @LAist @kpcc OK, that’s one way to stop me, for a while pic.twitter.com/9C2u5KmscG
— Adolfo Guzman-Lopez (@AGuzmanLopez) June 1, 2020
“Reporters have faced some physical abuse, but certainly regular verbal abuse,” says Erik Ugland, associate professor at Marquette University. “A lot of that is coming from the Right, but there are some on the Left who feel that the press is an institutional driver of the status quo.”
Ugland says that the law treats anybody with a platform — whether a community blog or The New York Times column — as a journalist protected under the First Amendment. This is unlike how more vocational fields like medicine or law are protected by licensure. This formulation generally protects bystanders from recording police interactions and sharing it on their platforms.
But since journalists and protesters are treated equally under the law, police can also treat and detain them in a similar manner. Ugland explains that police interaction only violates the First Amendment when they display an intent to suppress or prevent journalistic documentation of a protest.
“It makes me wonder what sort of training some of these officers are getting with regard to treatment of the press,” says Ugland. "The kinds of things I’m seeing now are really unfortunate and clear violations of the law.”
The specific laws around journalistic privilege and privacy are different state-by-state. In Wisconsin, only one party to a private conversation needs to give consent for that conversation to be recorded. In other states, all parties need to be aware. Last week, a staffer for Gov. Tony Evers leaked a phone call with Republican leadership, citing the state’s wiretap law and the conversation’s journalistic value. This may lead lawmakers to reconsider journalism and privacy laws.
But during a public protest, where people don’t have a reasonable expectation of privacy, journalistic activity is expressly permitted, including video and audio recording of the event so long as it remains on public property. Ugland says police have even less of an expectation to privacy after changes to the law in wake of the Ferguson protests in 2014.
“A few years ago, I could have understood some police officers not quite getting this. But this is such a strong trend in the law now, for courts to recognize the constitutional right to record the police, that the number of violations I see of this — even before the George Floyd protests — is simply astonishing,” says Ugland.
