Inside The Blade‘s settlement with the US government

The US government and The Blade of Toledo, OH, agree on at least one thing: The government owes the newspaper $18,000.

That’s the result of a settlement agreement announced last week that arises from a March 2014 incident in which two Blade journalists were detained outside a military manufacturing plant. The deal brings to a close a press-freedom case we’ve been watching closely—and while the settlement is certainly better than some possible outcomes, I’ll confess that I find it somewhat surprising, and a little disappointing.

Here’s what we know about the case: On March 28, Blade reporter Tyrel Linkhorn and photographer Jetta Fraser were at the Joint Systems Manufacturing Center in Lima, OH, where the US Army builds and refurbishes combat vehicles and defense systems, to shoot file photos of the center’s exterior. When they tried to leave, three military police officers detained and questioned them, confiscating their cameras and deleting some of their photos.

The Army later said the journalists had “taken unauthorized photographs of the installation,” in violation of “Federal law and Army Regulations.” And, in turn, The Blade filed a federal lawsuit alleging that the officers unlawfully detained the journalists, restrained Fraser and threatened her with bodily harm, confiscated and destroyed personal property, and infringed the exercise of the journalists’ First Amendment rights.

The suit contained 10 separate claims in all, based on the First, Fourth, and Fifth Amendments, as well as the Privacy Protection Act. Now, after nearly 12 months, the claims have been settled, and the government is paying $18,000.

The Blade, the reporter, and photographer are pleased with the resolution,” said Fritz Byers, the paper’s attorney. “By entering into this settlement and paying what is a substantial amount of money measured against the [relevant] damages provisions, the government has acknowledged the value of the First Amendment rights at stake and the significance of the infringement.”

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A public affairs officer for the Army did not respond to a request for comment.

(In addition to the lawsuit, The Blade filed FBI complaints in April 2014 based on the same allegations. FBI special agent Kelly Liberti told me at the time that the complaints were being evaluated. On Monday, she referred inquiries to an FBI media coordinator, who did not return my call. Byers said the lawsuit and FBI investigation were proceeding separately and that the settlement would not affect the investigation, but he did not know its status.)

The government’s legal argument remains unknown

The settlement is based on only the disputed claims under the Privacy Protection Act (the other claims are dismissed), and the government expressly does not admit liability and fault for what the military police officers did. Moreover, the newspaper agreed “not to publish, distribute, reproduce, sell, or share any of the photographs taken” of the tank plant.

Recent changes in Fourth and Fifth Amendment law have made it more difficult, procedurally and substantively, to prove damages for constitutional violations. But I’m nonetheless a bit surprised by the agreement, for two reasons: The Blade’s muscular rhetoric last year, and the apparent merit of its claims.

When Byers and I spoke in April, he told me that these “legal issues are well settled” and that “the expressive rights involved here are not just the rights of The Blade but those of the public, exercised vis-à-vis the media. … The expressive rights implicated here are not The Blade’s alone.” Kurt Franck, the paper’s executive editor, made similar comments at the time.

Now, though the government did agree to a payment, I find it hard to see this settlement as a strong vindication of those larger public rights. There is nothing to create a precedent for the public to rely on, for example, and the government did not admit liability or fault. (John Robinson Block, The Blade’s publisher and editor-in-chief, told the paper he wished the government had acknowledged “that they were wrong and violated our rights.”)

The paper agreed “not to publish, distribute, reproduce, sell, or share any of the photographs taken” of the plant.

Further, the newspaper’s agreement “not to publish, distribute, reproduce, sell, or share any of the photographs” is a bit of a mystery. Byers, the paper’s attorney, would not say how that provision came to be. My best guess is that it represents some concern or compromise over the government’s use of 18 U.S.C. § 795, a federal statute that prohibits the photographing of a “military installation” defined by the president as “vital” and “requiring protection against the general dissemination of information relative thereto.”

The Army never confirmed it was invoking § 795 (it did not file a formal response to The Blade’s lawsuit because of the settlement negotiations), and over the weekend Byers would say only that the government did refer to it during their discussions—otherwise, he didn’t want to speak for the government, which is not speaking for itself.

Notably, though, Byers told me last year that The Blade does not need anyone’s permission to exercise its First Amendment rights. When I asked Byers on Sunday what would happen if Fraser and Linkhorn returned to the tank plant and did exactly as they did before, he said, “The journalists would be protected by the First Amendment and the Privacy Protection Act.” I hope that’s true—but it seems incongruent with the agreement not to publish or share the photographs.

Perhaps the paper did not want to put itself in the position of challenging § 795. The measure has generated precious little case law, and a challenge could go either way. To my eye, though, the law is susceptible to a facial challenge. As Cindy Gierhart, a former legal fellow at the Reporters Committee for Freedom of the Press, told me last year, the statute “seems overly broad because it doesn’t distinguish military secrets and what is plainly visible to the public.”

All that said, it’s worth closing with the positives here. It was The Blade that had to bear the risks and costs of litigation, and the paper did file a lawsuit that many news outlets—for financial or other reasons—would not have filed. The paper exacted some government flesh for its efforts—that’s laudable. And it’s worth noting that The Blade plans to donate $5,000 of its $18,000 award to the Reporters Committee for Freedom of the Press, with the remainder shared by Fraser and Linkhorn.

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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.