The rule is, you can protest all you want. Make all the noise you want. Carry all the signs you want. The minute you throw a rock, you get arrested. The minute you break a window, you get arrested. The minute you break into a store, you get arrested.
Or, if you’re a journalist, you get arrested simply for gathering news at protests.
At least six journalists have been charged with felony rioting, as The Guardian first reported, after their arrests Friday at Trump’s inaugural parade. Some protesters–a small minority of the total crowd, the most magnificent crowd assembled in the history of the multiverse–set fire to a limo and broke the windows of an emergency vehicle and several storefronts. The damage, according to court papers, exceeded $100,000.
The journalists are Alex Rubinstein, of RT America; Evan Engel, of Vocativ; Jack Keller, of Story of America; and Aaron Cantú, Matt Hopard, and Shay Horse, all independent freelancers. They’re each facing 10 years in prison and a fine of up to $25,000–under a city law applying to any “person who willfully incited or urged others to engage in [a] riot” in which “a person suffers serious bodily harm or there is property damage in excess of $5,000.”
The arrest reports don’t contain specific factual allegations against the journalists. Rather, they refer to the commission of certain crimes (i.e., the property damage), and they make general observations about them. Apparently the journalists, nearby to cover the action, were arrested with over 200 people in what witnesses described as a street sweep.
Bill Miller, spokesman for the US Attorney’s Office in DC, which is handling the charges, told The Guardian that he wouldn’t discuss the journalists’ cases, except to say, “Based on the facts and circumstances, we determined that probable cause existed to support the filing of felony rioting charges.” He added that “[as] in all of our cases, we are always willing to consider additional information that people bring forward.”
Related: Cop to arrested reporter: ‘I’m tired of y’all saying you’re journalists
Meanwhile, Peter Newsham, the interim DC police chief, told US News he wouldn’t say why the journalists were charged. At least one of them had his phone seized, too, and Newsham wouldn’t say whether the police have warrants to search any seized phones.
A number of nonprofit media organizations, including the Committee to Protect Journalists, Pen America, and the Society of Professional Journalists, have condemned the charges. Right now the journalists–and in some cases, their employers–are preparing for hearings that will be held in February and March.
First Amendment defense, other issues
Assuming the facts are as they seem–the journalists were simply covering the protest and got caught in a street sweep–the charges should be dismissed. They’re a waste of time and stand to chill expressive activities and violate the First Amendment. But I wouldn’t go the extra step (yet) to say the arrests are manifestations of Trump’s self-styled “running war with the media,” because journalists are arrested often, unfortunately, when covering protests. In recent years, for example, I’ve written about such arrests in Ferguson, Missouri, after Michael Brown’s death, and in New York and elsewhere at the height of the Occupy Wall Street movement.
One thing that tends to complicate these cases, from a journalist’s perspective, is that the First Amendment doesn’t provide strong protections for gathering information. Journalists generally don’t have special rights in this context; they share with the public the right to be in a public forum, a place open historically for expressive purposes, and to gather information there. Public sidewalks and parks are classic examples. In most jurisdictions, including DC, they also have the right to record police activity in public.
That said, journalists may not use the First Amendment as a shield if they commit crimes while gathering information (e.g., setting a limo on fire). And the government may impose reasonable time, place, and manner restrictions on the use of a public forum (e.g., a law requiring a permit to use a megaphone in a residential area, in the interest of regulating noise). Journalists must comply with such restrictions.
Applying those principles here, and again assuming the facts are as they appear, the journalists should be in good shape. They didn’t commit crimes or violate forum restrictions. It also helps that at least several of them identified themselves as journalists before their arrests. Journalists don’t need credentials to gather information in a public forum because they have the right to be there and do that, vis-a-vis the public’s right to do the same. But carrying credentials is a good idea, and so is identifying yourself if confronted by police or detained. Even though that won’t make you immune to arrest, it can help establish why you’re there–to gather news rather than to protest or riot. That can affect how the police treat you.
However, it doesn’t really matter that The Guardian described two of the journalists, Horse and Cantú, as activists–which made me think of the 2016 rioting charge filed against Democracy Now’s Amy Goodman in connection with her reporting from Standing Rock. The local prosecutor tried to justify the charge, in part, by saying Goodman was a protester, not a journalist. Well, that’s a meaningless distinction here because the right to gather information in a public forum is shared by the press and public. The bigger issue would be if the individuals involved (whether they’re protesters, activists, journalists, or a hybrid) committed crimes or violated forum restrictions.
So the chances are high of a successful First Amendment defense or an action that allows people to sue government officials for depriving them of a Constitutional or civil right. Alternatively, I’d question whether the charges are supported by probable cause (without it, a warrantless arrest is made invalid). Probable cause hinges on what the arresting officers knew or reasonably believed when an arrest was made. Here, the journalists seem to have been gathering information in a public forum and even identified themselves, facts that undermine the basis for their inclusion in the group arrests.
Moreover, putting aside probable cause, the prosecutor should have declined to bring the charges. Prosecutors are ministers of justice, and they have discretion in charging decisions. That means they “may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction,” according to the American Bar Association’s Standards for Criminal Justice. It’s pretty easy to argue that it’s in the public interest not to file charges against journalists who were trying to illuminate the biggest story in the world at the time.
It’s also worth mentioning that the US Supreme Court held in 2013 that the police may not generally, without a warrant, search the contents of a cell phone seized from a person who was arrested–and the federal Privacy Protection Act forbids law enforcement officers generally from searching and seizing any work product and documentary materials, including photos and videos, “possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” Those legal sources could be helpful in a dispute arising from the contents of the journalists’ cellphones, for any who had them seized.
Photo credit: Media and protesters move through the smoke of percussion grenades as protesters and police clash on the streets of DC on Friday, January 20, 2017.(Photo by Jahi Chikwendiu/The Washington Post via Getty Images)
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.