“The last thing I wanted was to become the subject of a story,” wrote Tara O’Neill, a reporter for CTPost.com, in a story she posted last May.
O’Neill, based in Bridgeport, Conn., was filming a protest on the second anniversary of the death of Jayson Negron, a 15-year-old shot by local police, when she was approached by uniformed officers and asked to move off the sidewalk.
When she told them she had every right to be on a public sidewalk, they cuffed her. She caught the whole thing on video, quoting one officer who said later he “didn’t know she was in the media.” As she wrote, she was “patted down….put into a police cruiser and taken to booking.”
Arguably, police knew who O’Neill was. She had been reporting on allegations of misconduct by the Bridgeport Police Department over the previous two years. Subsequently, as she put it, she was “unarrested.” One of her editors later speculated the arrest was “retaliation and intimidation’ for her coverage.
Editor’s Note: video of her arrest, taken by O’Neill, can be accessed here.
Whether true or not, such so-called “catch-and-release” practices by police to stop reporters, including citizen journalists, from covering legitimate events are far from rare—and they are now more likely to be upheld in court, according to a forthcoming Columbia Law Review paper.
A Supreme Court ruling last year effectively leaves journalists even more vulnerable by upholding police claims that “probable cause” —in which an officer believes a reporter is violating the law—overrules a claim of First Amendment protection of freedom of speech, wrote the paper’s author, John S. Clayton, a J.D. Candidate at Columbia Law School.
Clayton, who used the Tara O’Neill incident to illustrate his case, argued that the Nieves v. Bartlett ruling determined that if there were probable cause for an arrest, (like jaywalking, or failure to comply with an officer’s demands), it defeats any First Amendment claim against law enforcement — “except for certain, atypical arrests.”
In other words, if a journalist or citizen journalist believes they’re being arrested because the arresting officer doesn’t like their coverage or wants to intimidate them, claims that First Amendment rights were violated are null if the officer can provide a probable cause for arrest or detention.
In a synopsis of Nieves (cited by Clayton), Prof. Jud Campbell, an expert in constitutional law, said police cannot make an arrest just in retaliation for First Amendment-protected speech.
But he noted that the concept of probable cause can effectively override that defense if an officer can cite specific examples of offensive behavior, such as refusing to follow directions, or even acting in an unruly manner.
Journalists covering a mass protest could be especially vulnerable, Campbell observes.
Others media experts agree.
“The concern for journalists is that almost everyone at a protest, or a similarly chaotic crowd scene, is guilty of some minor infraction,” Frank D. LoMonte, the Director of the Brechner Center for Freedom of Information wrote in a Medium article.
“A videographer following marchers down a busy street may be jaywalking or obstructing traffic, even by stepping off the curb for a moment.”
The U.S. Press Freedom Tracker website has estimated that since 2017, over 60 journalists have been arrested, most often while covering protests. This statistic doesn’t include the attacks, arrests or attempts to interfere with members of the public, acting as citizen journalists, who have used their smartphones or videos to record police shootings of unarmed civilians or arrests.
Clayton went on to argue that because of Nieves, it’s become increasingly difficult for a newsgatherer to prove that an officers’ arresting motive is to punish their exercise of free speech.
“[The Supreme Court ruling allows] authorities to arbitrarily wield broad, censorial power to suppress information before it reaches the marketplace of ideas,” he wrote.
Nieves now sets an ominous precedent for upholding officers who claim their actions against a journalist were the result of perceived inflammatory behavior, thereby superseding any First Amendment retaliation claim made against the police.
Clayton calls this behavior “catch-and-release” —moving a journalist away from the scene of an event where they might witness questionable behavior by law enforcement, but without subjecting the journalist to arrest.
Clayton maintained that arresting journalists for something like standing in the wrong place during a protest allows authorities to essentially censor the media. Courts might, however, conclude that this amounts to “prior restraint,” a form of censorship that might produce an acceptable argument in the media’s favor in court.
Frank LoMonte of the Brechner Center noted that the nature of modern mass protests reinforces the ability of law enforcement to clamp down on coverage they find objectionable.
“If [a] momentary misstep is now going to justify an arrest — even if the officer’s real motive is to suppress news coverage — then the First Amendment right to gather news on the scene of a heavily policed public event becomes nearly impossible to enforce.”
The ruling provides some possibilities for lower courts to still decide in favor of journalists, under the “atypical arrest” exception established by the Court.
Under Nieves, there are situations where law enforcement had “probable cause to make arrests, but typically exercise their discretion not to do so.”
Nevertheless, Clatyton argued, the ruling represents a worrying restriction on press freedom, and it may undermine some recent circuit court decisions recognizing a First Amendment right of citizens to film police and government activities.
“Some of the most socially important newsgathering acts in recent years involved citizens recording police violence on cell phones, including the use of force against Eric Garner and Walter Scott,” Clayton wrote.
“A newsgatherer who seeks to videotape police misconduct, but cannot do so due to an arrest, is irrevocably prevented from capturing a unique set of images that might otherwise be used to hold local officials to account.”
To remedy these potential injustices, Clayton maintained that courts must treat a journalist’s arrest as a prior restraint intended to suppress the media. It can also apply what he called “speech-protective remedies” to these cases, and clearly define “atypical arrests.”
“By embracing these solutions, courts can ensure that newsgatherers like Tara O’Neill who are arrested while fulfilling core First Amendment values will have a legal remedy to vindicate their rights and deter future efforts at state suppression,” Clayton concluded.
The forthcoming paper can be accessed here.
This summary was prepared by TCR staff writer Andrea Cipriano