Remedies for harassing or retaliatory behavior

AP Photographer Matthew Rourke was arrested during the 2008 Republican National Convention in St. Paul.

Journalists regularly call The Reporters Committee for Freedom of the Press’ legal defense hotline complaining that local government officials who are displeased with their newsgathering or publishing activities engage in harassing or retaliatory conduct that makes the job nearly impossible. These acts range from asking the journalist’s supervisor to bar the reporter from gathering or publishing information about the official, to refusing to grant interviews to this journalist only, to ordering staff members to decline to provide materials requested by the reporter, to, in the extreme example of the Maryland sheriff deputies, confiscating publications to prohibit community members from reading the material.

An assessment of whether these acts amount to an unconstitutional interference with the journalist’s First Amendment rights is a difficult one that will likely turn on the ability, or lack thereof, to prove that the officials acted with retaliatory motives, Kissinger said. As such, journalists who suspect they are being targeted for their publishing or newsgathering activities should be able to identify specific examples indicating this ill will. These can include statements the official made directly to the reporter or others or a timeline establishing that the official’s acts followed or somehow otherwise corresponded to particular newsgathering or reporting activities.

Amanda Martin, a North Carolina media attorney, likewise emphasized the importance of accurately documenting encounters with the police, noting that “minor, isolated incidents are not likely to trigger liability on behalf of the law enforcement agency, but repeated or egregious violations can.”

Martin represented a freelance photographer in Durham, N.C., who in 2007 sued the city’s police chief and a captain for allegedly violating his civil rights on several occasions dating back 15 years. The suit alleged that Julian Harrison, while working as a journalist, had been “harassed, assaulted, battered, unjustifiably arrested and falsely charged with crimes,” detailing seven separate arrests. All charges against Harrison, which included trespassing and interference with investigation, were eventually dismissed. The defendants settled the case for $11,500, according to court documents.

Martin advised that journalists who are arrested should do what they can to document events as they occur, including keeping detailed written notes and asking another reporter on the scene to record what transpires.

“Months later, your recollection may differ from that of the arresting officer, but what is recorded by a camera is objective evidence of what took place,” Martin wrote in a recent newsletter of the North Carolina Press Association, which she represents. “A partial recording that remained after law enforcement attempted to erase a recording was enough information to prompt the First Circuit (in Iacobucci v. Boulter) to write, ‘A police officer is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it.’”

Agathocleous agreed, saying the case of the “Democracy Now!” journalists provides a compelling example of how important contemporaneous audio and video footage of an arrest can be in a lawsuit alleging that the detention was unlawful. Reporters involved in encounters with police should obtain as much documentary evidence as they can, including arrest, incident and other reports, he said. These journalists should also take great efforts to identify, preferably by name but at a minimum by badge number, the officers involved in the event. The more identifying information a reporter is able to ascertain, the easier it is to narrow the large field of officers assigned to work public events to those who may have acted unlawfully in doing so.

Other remedies

In addition to the Constitution, federal law prohibits the police from confiscating journalists’ newsgathering materials. The Privacy Protection Act of 1980 makes it “unlawful for a government officer or employee . . . to search for or seize any work product materials 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.” The statute applies to all searches and seizures of all types of journalists in any situation.

Contrary to many authorities’ understanding, federal law requires officials (including police) to obtain a subpoena — not simply a search warrant — in order to gather evidence, including film, notebooks and recordings of all types, from a newsroom or from a journalist. When authorities fail to do so, journalists may file a civil lawsuit under the Privacy Protection Act, which mandates a minimum $1,000 damages award to journalists who prevail on their claim.

There have been several cases nationwide where officials unlawfully searched newsrooms either because they were ignorant of the laws or because they chose to ignore them. In April 2010, officials executed a search warrant on the newsroom of the student paper at James Madison University in Harrisonburg, Va., and confiscated hundreds of photographs of a campus event that the editor-in-chief refused to hand over. The students obtained a $10,000 settlement award from the local prosecutor after filing a civil rights suit.

A 2011 Pennsylvania case indicates that the problem may extend to the judiciary as well. Senior District Judge Andrew Barilla in Wilkes-Barre authorized a search warrant on local TV station WNEP that authorities attempted to carry out in search of unedited, unaired video footage of a fatal house fire, according to The (Wilkes-Barre) Times Leader.

When WNEP employees turned officers away, Judge Tina Polachek Gartley ordered the station to hand over the video footage. However, WNEP challenged the order, arguing the footage was protected under the state’s shield law, and the judge rescinded her order.

Despite the reversal, newspaper reports indicated that Polachek Gartley questioned WNEP’s “authority” to refuse a search after a judge signed a valid warrant. There was no mention of authorities’ need for a subpoena.

State statutes may also provide another remedy, Agathocleous said, noting that his clients, in addition to the constitutional violations, alleged that officers at the Republican National Convention also were liable for false arrest, assault, negligence, negligent supervision and training and battery under Minnesota law.

Agathocleous pointed out, however, that rights under many state laws are deemed waived when a plaintiff fails to bring suit for violation of the right within a certain amount of time after the occurrence of the event at issue. Depending on the particular law and state, these time limits are fairly generous and usually range from one to two years, but journalists considering suing under them should always keep track of the specific deadline, he added.

Finally, the Federal Tort Claims Act allows journalists and others to sue federal officers for damages for wrongs that resulted from an intentional act on the part of the defendant, such as an assault or battery, Agathocleous said. Before a plaintiff can bring such a cause of action, however, he or she must first file a claim with the federal agency responsible for the alleged misconduct. While this claim is being reviewed by the agency, it is referred to as an administrative claim. Although not required, the easiest way to prepare an administrative claim is to use the federal government’s standard claim form, known as a Standard Form 95 or SF 95.  

A potential plaintiff has two years from the time the claim arose to file the administrative claim with the appropriate federal agency. Once the claim is submitted, the agency has six months to rule on it. In some cases, the agency may acknowledge that the claim is valid and agree to pay the individual some or all of the money damages he or she demanded, obviating the need to go to court. If an agency rejects the claim or refuses to pay all the money damages demanded, however, the claimant has six months from the date on which the decision was mailed to file a lawsuit. A downloadable copy of an SF 95 is available on the U.S. Department of Justice’s web site at http://www.justice.gov/civil/docs_forms/SF-95.pdf.