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June 5, 2000
The Hon. Kenneth Barr
Re: People v. Larry Erickson, MRE-08395 Your honor: We write to express our shock at the severity of the sentence imposed against freelance journalist Larry Erickson in the above-referenced case, and to encourage the court to reconsider that sentence. We do not seek to intervene in this case through this letter. We do not take a position as to the facts in dispute during the proceedings before the court, and we do not seek to introduce new evidence here. We limit our comments to the standard used to determine the "factors in aggravation" that led to the surprising sentence. The Reporters Committee for Freedom of the Press is a nonprofit organization dedicated to providing legal assistance to journalists defending their First Amendment rights. Founded in 1970, the committee runs a toll-free hotline for journalists, produces publications and special reports on areas of the law that affect journalism, files amicus curiae briefs in cases around the country to ensure that protections afforded by First Amendment remain strong, and helps journalists facing legal challenges obtain counsel. The Reporters Committee has always provided these services to journalists at no charge. There is no doubt that Mr. Erickson works as a journalist, and was engaged in constitutionally protected newsgathering at the emergency scene. It is equally clear that some of his actions exceeded the norms for how journalists interact with police at crime scenes. But in determining what the appropriate sentence must be, it is also outrageous to consider factors such as his contact with other members of the news media, his call to an attorney, and his previous successful attempts to vindicate First Amendment rights through a civil rights action. The court pointed out in sentencing Mr. Erickson that he called the assignment desk of a television news department, and may have called one of the officers a name to antagonize him in front of news cameras that he hoped would arrive at the scene. We would point out that when a journalist has been denied access to a news scene, it is common for the reporter to publicize this fact to other news outlets with the hope of better resolving disputes between newsgathering interests and legitimate police needs in the future. And even when such a scenario may not be the probable reason for a person's behavior, it seems to be a greater injustice to speculate that a possible interpretation of the facts is that he was hoping to "entice" an officer before other journalists. Relying on this theoretical scenario to justify a harsh sentence compounds the injustice. We were equally troubled to read in the court transcripts that Mr. Erickson's call to attorney Steve Yagman while in police custody was viewed as indicative of an attempt to "set them [the police] up for another lawsuit." It truly offends the sensibilities behind civil rights legislation and the First Amendment to suggest that talking to an attorney and winning a civil rights suit can be turned into evidence that the defendant was out to get police. The filing of a civil rights suit to vindicate constitutionally protected rights should not be evidence of animus or illegal intent; successfully advancing such a suit -- presumably meaning that a court and jury that considered all evidence sided with the journalist -- simply cannot be. Under the court's reasoning, those who dare to defend their rights will soon lose them. The sentence handed down seems to be based both on a worst-case scenario of what might have occurred if Mr. Erickson had not been stopped by police, and on speculation about his motives that do not seem to be supported by testimony before the court. We also ask the court to reconsider its finding that "there really aren't any factors in mitigation." We would encourage the court to consider that this defendant was engaged in newsgathering and was being restrained from covering news at the time of the incident, which certainly separates this case from the typical incident involving interference with police at a crime scene. We do not argue that gathering the news justifies belligerent action, and we do not suggest that journalists have license to ignore the law or commands from officers at an emergency scene. We simply point out that the fact that Mr. Erickson was engaged in constitutionally protected activity should be considered in the balance of factors affecting the length of the sentence. What the court viewed as Mr. Erickson's "true contempt for authority" could also be viewed as, or at least partially explained by, an overzealous reaction to official attempts to restrict his news reporting. Respectfully submitted,
Lucy A. Dalglish
Gregg P. Leslie The Reporters Committee for Freedom of the Press cc:
Dennis Wilkins
Art Harrison
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