The Toledo Blade filed a federal lawsuit Friday against various government officials after military police reportedly detained two of the paper’s journalists outside a military manufacturing facility, seized their equipment, and deleted digital photographs.
We’ll get into some discussion of The Blade’s claims below. First, here’s what we know about the events, from the paper’s point of view.
Reporter Tyrel Linkhorn and photographer Jetta Fraser traveled on March 28 to the Joint Systems Manufacturing Center in Lima, OH, a little over an hour southwest of Toledo, to shoot file photos of the center, which manufactures and refurbishes combat vehicles and defense systems. According to the paper, Fraser took photos from the center’s entry, standing in a small roadway between the public street and a guard hut and shooting areas of the facility visible from the street. When she was done and tried to leave with Linkhorn, three military police officers detained and questioned them–and confiscated their cameras, according to a report in The Blade the following day.
The lawsuit names as defendants the secretary of defense, the center’s commandant, three military police officers, and an unknown agent or employee of the Department of Defense. (General Dynamics, the contractor that operates the facility, is not named as a defendant.) The complaint alleges, among other things, the officers unlawfully detained the journalists, unlawfully restrained Fraser and threatened her with bodily harm, unlawfully confiscated and destroyed personal property, and interfered with the journalists’ lawful exercise of their First Amendment rights. The suit’s 10 claims arise from the First, Fourth, and Fifth Amendments, as well as the Privacy Protection Act.
“We’ve always tried to do what’s right,” Kurt Franck, the Blade’s executive editor, told CJR. “Our role is that of the fourth estate, and if that means we have to go to court and spend money to do what’s right by our readers and the public, then that’s what we’ll do. Everything that happened that day made it apparent we couldn’t sit back and take it. It wouldn’t be good for The Blade, for our readers, for the public, for the First Amendment.”
According to the complaint, neither Linkhorn nor Fraser passed the guard hut, which is set back 30 feet from the main road and was unoccupied at the time, and no signs or traffic-control devices were in place to limit access to the roadway between the street and guard hut. In addition to being visible from the street, the plant can be seen through Google Street View. A Street View image uploaded by The Blade shows where the incident took place.
The Blade’s top editors, including Franck and John Robinson Block, the publisher and editor-in-chief, were surprised and ultimately outraged to learn that military police had detained the two journalists–outraged chiefly because of the alleged treatment of Fraser.
The complaint states that when the officers approached the journalists and asked why they were taking photos, Linkhorn and Fraser produced their Blade identification cards and said they were on assignment. Then the officers told Fraser, who was not driving, they needed to see her driver’s license. She questioned whether that was necessary, and the officers ordered Fraser to exit the vehicle, handcuffed her, and conducted a pat-down search. She remained in handcuffs for one hour. Throughout the encounter, as the officers handcuffed and questioned Fraser, they addressed her “in terms denoting the masculine gender,” according to the complaint. Fraser asked the officers not to do so, reportedly prompting one to comment, after handcuffing her, “You say you are a female, I’m going to go under your bra.”
“That’s what bothered us first and foremost, what they did to her,” said Franck. “I was appalled when I heard it, and I’m still appalled.”
Phone calls Friday and Monday to the public affairs office for the Army’s TACOM Life Cycle Management Command, which oversees the Lima facility, were not immediately returned. Two days earlier, however, before the lawsuit was filed, the Army provided a statement to The Huffington Post alleging the journalists had “taken unauthorized photographs of the installation” from “within the boundaries” of the plant and noting:
JSMC Lima is a restricted Department of Defense Government-owned, Contractor-operated facility that fabricates and assembles armored combat vehicles and equipment for U.S. and Foreign Military customers. According to Federal law and Army Regulations, it is unlawful to take any photograph without first obtaining permission of the commanding officer. Signage to this effect is visible and warns that any such material found in the possession of unauthorized personnel will be confiscated.
[Update: An Army public relations officer returned CJR’s call Monday afternoon, left the same statement provided to Huffington Post on a voicemail message, and said that was the available information.]
The officers did seize Fraser’s cameras and memory cards, according to the complaint, and when the journalists were released after being detained about an hour and a half, the officers refused to return the equipment, all of which is the Blade’s property. It was returned several hours later, after Sen. Rob Portman (R-Ohio) intervened on the paper’s behalf. However, the complaint alleges, “[A]ll of the photographs taken by … Fraser at the Joint Systems Manufacturing Center, as well as photographs taken earlier at other locations, … had been destroyed while the cameras and memory cards were in the possession and control” of the military police.
It’s unclear from the Army statement which “Federal law and Army Regulations” are applicable. Fritz Byers, the Blade’s attorney, said the paper does not agree that it needs the permission of a commanding officer, or anyone else, to exercise its First Amendment rights.
“These legal issues are well settled,” he said. “And the expressive rights involved here are not just the rights of The Blade but those of the public, exercised vis-à-vis the media.” That’s one reason the paper felt compelled to file a lawsuit after filing complaints two days earlier with the FBI, basically repeating some of the same allegations. (FBI special agent Kelly Liberti told CJR the complaints are being evaluated).
“The conduct in Lima involved civil rights violations, and The Blade believed it was important to bring them to the attention of the FBI, which has the authority and jurisdiction to investigate such violations,” Byers said. “We also believed, in the context of the lawsuit, it was important to raise these issues publicly and to address them publicly. Again, the expressive rights implicated here are not The Blade’s alone.”
The lawsuit will proceed separately from the FBI complaints.
As the suit proceeds, military officials will have an opportunity to present their own account of the incident, and a fuller argument for their legal position. At the moment, it’s worthwhile to consider a few points related to the first claim in The Blade’s lawsuit, “Deprivation of Speech and Press Rights.” It reads:
The above-described conduct of the Defendants and each of them in seizing the person and property of the Plaintiffs, and in destroying the photographs owned by Plaintiffs, with the purpose and effect of preventing the acquisition and publication of the information contained in the photographs, constituted an abridgement of the rights of the Plaintiffs to observe, record, and publish publicly available information, in violation of their rights to freedom of speech and of the press guaranteed by the First Amendment to the United States Constitution.
The above-described conduct of the Defendants and each of them in seizing and destroying the photographs owned by Plaintiffs, with the purpose and effect of preventing the acquisition and publication of the information contained in the photographs, constituted an unlawful and unconstitutional prior restraint on publication and was further accomplished without any constitutionally required opportunity for judicial review of the restraint, all in violation of the Plaintiffs’ rights to freedom of speech and of the press guaranteed by the First Amendment to the United States Constitution.
First, there’s the issue of whether the expressive rights implicated here are not The Blade’s alone, the idea offered by both Franck and Byers. That’s true. In large part, reporters enjoy First Amendment protections as agents, the “eyes and ears of the public,” as Chief Justice Warren Burger said when announcing the judgment in the 1980 case Richmond Newspapers v. Virginia. The idea is that most people can’t get for themselves the information they need to be informed and to participate in the political process. They rely on the press, whose right to gather and publish is the public’s right to do the same.
Second, the issue of trespass and whether the center’s entry, where Fraser stood to take her photos, is private or public. As one federal appeals court put it, “[T]here is no journalists’ privilege to trespass.” That means journalists can face civil liability and criminal prosecution when they trespass, and in general that applies to government-owned property. However, not all journalists who enter private property uninvited are trespassers–whether the owner or occupant asks the reporter to leave is critical, and the circumstances here are unclear. At any rate, no trespass claim has been made by the government, and if one were made, even successfully, it would not entitle the government to seize cameras and memory cards for an extended time or to delete photographs.
Third, the issue of abridging “the rights of the Plaintiffs to observe, record, and publish publicly available information.” Under the First Amendment and state common law, generally, a person may observe, record, and publish what easily can be seen or heard in public–what any passerby might see or hear. And using technology that enhances the powers of observation or recording (e.g., a telephoto lens) is fine as long as the device does not allow a journalist to hear or see what normally could not be heard or seen. In this case, the complaint states that each of Fraser’s photos captured “part of the Center that was plainly visible to the public from the public streets or the public part of the Center’s entry.” That’s significant.
We’ll be watching how this unfolds. Here, again, is the lawsuit filed Friday.
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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.
