After an arrest

A journalist’s guide to civil rights claims and other remedies for government interference with newsgathering activities

“Democracy Now!” host Amy Goodman and two producers were among the more than 40 journalists arrested during the 2008 RNC convention while covering the protests in downtown St. Paul.

By Kristen Rasmussen

More than 40 journalists were arrested while covering protests during the 2008 Republican National Convention in St. Paul. All charges were dropped, and a broadcast journalist and two producers, the latter of whom said they were bloodied during their encounters with police, sued the Minneapolis and St. Paul police departments. The agencies recently agreed to pay the journalists $100,000 to settle the suit.

On the other hand, seven student journalists covering International Monetary Fund and World Bank demonstrations in Washington, D.C., were among the more than 650 people arrested during the chaotic event. Four of the students sued the D.C. police department, U.S. Attorney General and National Park Service. This October will mark the 10th anniversary of the filing of the lawsuit, which is still pending in federal court.

Scenarios like these raise an obvious question: How can such seemingly similar incidents give rise to such different outcomes? The answer centers on a number of legal doctrines, courts’ interpretation of which depends on the specific facts of a particular case.

Elements of a civil rights claim

When a journalist or member of the public believes that a government official purporting to be performing official duties deprived the individual of a right guaranteed under the U.S. Constitution, he or she may be able to sue the official in civil court. These civil rights claims, brought under federal law 42 U.S.C. § 1983 and thus often dubbed “Section 1983 claims,” allow a plaintiff to seek damages from the government and the official for the latter’s unlawful conduct. Generally, the purpose of a Section 1983 claim is to prevent civil rights violations by government officials.

Section 1983, adopted as part of the Civil Rights Act of 1871 and then informally known as the Ku Klux Klan Act, applies to state and local officials. The right to sue a federal official for such violations — called a Bivens action after the 1971 case in which the U.S. Supreme Court allowed such claims — is not explicitly authorized by the statute but springs from the Fourth Amendment right to be free from unreasonable searches and seizures.

Most civil rights claims brought by journalists allege violation of the reporters’ rights to freedom of the press and to gather news under the First Amendment. Actions that may constitute an infringement of this right include the detention and arrest of reporters as they do their jobs, interference with their ability to gather information and report on matters of public interest and concern by, for example, denying access to a place where a newsworthy event has occurred and harassment or retaliation for journalists’ publishing or newsgathering activities.

Journalists may also bring a civil rights action for violation of their right to be free from unlawful searches and seizures under the Fourth Amendment. When officials confiscate journalists’ notes, film, video or other newsgathering equipment or arrest them without probable cause, a Section 1983 claim or Bivens action under this theory may be appropriate.

Potential defendants

Although a civil rights claim can be brought only against a government official acting “under color of” law, that does not mean an official must be on duty. For example, a newspaper publisher brought a successful Section 1983 action against off-duty sheriff deputies who attempted to buy and throw away all copies of an election-day newspaper criticizing their favorite candidates. This attempt to regulate or censor the news violated the speaker’s constitutional right to communicate, as well as the audience’s right to receive the information, the U.S. District Court in Baltimore ruled in Rossignol v. Voorhaar in 2004.

Although 42 U.S.C. § 1983 does not explicitly allow suits against federal officers for violations of constitutional rights, the U.S. Supreme Court in Bivens v. Six Unknown Named Agents held that a victim whose Fourth Amendment rights had been violated by Federal Bureau of Narcotics agents could sue for the violation of the amendment itself, despite the lack of any federal statute authorizing such a suit.

Bivens’ creation in 1971 of a cause of action against federal officers has become particularly significant in recent years, said Alexis Agathocleous, a staff attorney at the Center for Constitutional Rights who represented “Democracy Now!” news hour host Amy Goodman and producers Sharif Abdel Kouddous and Nicole Salazar in their lawsuit stemming from their arrests while covering the 2008 Republican National Convention.

“There has been an increase in the policing [of newsworthy events] by federal law enforcement officers around the country, particularly at mass demonstrations,” Agathocleous said. “They view these events as matters of national security.”

In addition to the municipal police departments, Goodman, Kouddous and Salazar also named an unidentified U.S. Secret Service agent as a defendant. Unlike Section 1983 claims, Bivens actions may only be brought against individual officers, not the government agencies that employ them.