Why journalists have the right to cover the University of Missouri protests

A woman passes a tent encampment set up by student protesters following an announcement that University of Missouri System President Tim Wolfe is resigning Monday, Nov. 9, 2015, at the university in Columbia, Mo. (AP Photo/Jeff Roberson)

Pay heed, all who interfere with Tim Tai’s newsgathering: He will photo-splain the First Amendment to you. Tai is the student journalist seen in the viral video trying to take pictures of the #ConcernedStudent1950 assembly Monday at Mizzou, soon after the university system’s president resigned at the activists’ behest.

Hundreds of students, faculty, and staff gathered on the Carnahan Quadrangle to support the 1950 group, whose name is a nod to the year black students were first allowed on Mizzou’s campus. The president’s resignation—and later the chancellor’s—followed weeks of unrest at the state’s flagship university. One grad student declared a hunger strike, and the football team refused to compete as long as the president kept his job, all while the 1950 members camped out in tents on campus. The protests were sparked by anger that administrators had not acted more quickly to address recent expressions of racism directed at black students.

Shortly after the president announced his resignation, the group’s supporters locked arms around the quad’s perimeter to keep the press out. Some chanted, “Hey hey, ho ho, reporters have got to go.” Lawn signs in the area proclaimed, “No Media—Safe Space.” The group’s Twitter feed dismissed the press’s interest: “We truly appreciate having our story told, but this movement isn’t for you.” And so, as Matt Pearce of the Los Angeles Times put it, “In a truly weird turn, the Mizzou story now seems to have rotated into a battle between activists and another Mizzou institution: the media.”

Tai, 20, a senior photojournalism major from St. Louis, Missouri, was on the front lines of that battle—however unwittingly. He was on assignment for ESPN.com and found hundreds of people singing and celebrating in the quad after the president announced his resignation. Tai quickly set to work to capture the moment—from inside the quad—but the 1950 supporters interfered.

As the video shows, one tells him to back up because nearby signs instructed the media to stay out. Another supporter says, “You do not have a right to take our photos.” Tai explains that he does have that right, and he says the First Amendment principles that allow them to be in the quad also allow him to be there. And then, two minutes into the video, a university administrator joins the fun.

Janna Basler, Mizzou’s director of Greek life and leadership, tells Tai that he needs to “back off” and “go.” She brushes against him, and Tai asks if she’s employed by the Office of Greek Life. Basler responds, “My name is 1950.” She also tells Tai that he is “impinging on what [its members] need right now, which is to be alone.” As the students behind Basler begin to push forward, she makes physical contact with Tai, prompting him to object, to which she responds, “I don’t have a choice.” The students seem to decide that since he’s not going to move, they’re going to move forward as a human chain, physically pushing him back with their bodies. A student adds, “It’s our right to walk forward.”

The video, shot by Mark Schierbecker, 22, a junior history major and photographer for The Maneater, the independent campus newspaper, also captured a confrontation with a faculty member. Melissa Click, an assistant professor of communication who specializes in popular culture, refuses to answer any questions from Schierbecker—before telling him to “get out” and grabbing at his camera. Then she turns to the 1950 supporters scattered behind her and says, “Who wants to help me get this reporter out of here? I need some muscle over here.” 

By Monday evening, these encounters had become the subject of plenty of media coverage

‘Sometimes you have to put down the camera… [This] is not one of those times’

A few disclosures: I lived for three years in Columbia, Missouri, and got my Ph.D. from the Missouri School of Journalism, with a focus in media law. (I’m now a media law professor at the University of Kansas). I loved my time there and learned a ton from the faculty members who mentored me. They shared with me not only their passion for teaching and research but also their kindness and good humor. I taught journalism courses for two of the years I was there, and that remains the greatest privilege of my Mizzou experience. I had wonderful students. They worked hard and cared, and they had serious ambition. 

One of those students was Tim Tai. He is every bit the consummate professional he seems to be in the video, and his smarts and skills have convinced me that someday we’ll all probably work for him. Watching him in the video, I was struck—but not surprised—by his grace under pressure. That’s Tim. It’s just like Tim to come away with some great photos despite the turmoil. And it’s also just like Tim to say world-wise things like this:

As a photojournalist, my job is often intrusive and uncomfortable. I don’t take joy in that. …You take the scene as it presents itself, and you try to make impactful images that tell the story. … And sometimes you have to put down the camera. But national breaking news on a public lawn is not one of those times.

That’s what he told me last night. And he’s right—this was not one of those times.

I understand that the 1950 supporters’ reactions may have been the product of a long history of distrust between minority communities and the media. And, even though they appear to understand neither First Amendment law nor the concept of irony, the student supporters have my sympathy.

I mean, yes, it puzzles me why it would seem principled to the student activists to overtake a public forum for their own expressive activities and then to declare the forum a safe space, with the intent or effect of making it unavailable for others to engage in expressive activities there. That’s inconsonant with the values that underlie the First Amendment—and the theory that public forums, like the quad, have been “held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” according to the US Supreme Court. Indeed, a Missouri state law recently codified that very idea. 

But the students feel passionately—with good reason—and I wouldn’t expect them to know where all of the constitutional speed bumps are located in the quad. I’ll simply implore them to consider the First Amendment’s nonexclusivity along with the righteousness of their cause. 

The adults, however, are another story. Basler and Click did not respond to my requests for interviews. But based on the evidence in the video, they behaved inexcusably—as adults in positions of some authority who should have known better. They should have known better than to think that people gathered in public have a right “to be alone,” and known better than to call for “some muscle” to “get this reporter out of here.” Basler and Click treated students at their own university, journalists or not, in a way that dishonored the public trust placed in educators.

Moreover, as public employees and arguably government actors under the federal constitution, Basler and Click tried to regulate First Amendment activity in a public forum (i.e., the media’s peaceable assembly and newsgathering).* That potentially exposes them and the University of Missouri to liability under 42 USC § 1983, a federal law that allows individuals to sue public agents and entities for deprivations of civil or constitutional rights. Because of the physical contact shown on the video, it’s even possible that they could be liable for assault in the third degree under Missouri law.

I doubt, though, that Tai or Schierbecker will press the issue. As Tai told me, “I don’t have ill will toward the professors, staff, and students. I think they had good intentions but were very passionate, and I wish we could both learn something from the encounter. But, at the end of the day, the constitution is the constitution, and I’m dismayed that [faculty and staff] didn’t understand that.”

I’m equally dismayed, and in the spirit of collegiality, I’m cordially inviting Basler and Click to audit my First Amendment course. I’ll even explain what the big words mean.

* This line has been modified for clarity.

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Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. 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.