Who’s impeding whom?

By Kirsten Berg

At events with huge crowds, rowdy protestors, and large law enforcement presence—high-intensity situations for cops and journalists— professions collide as adrenaline runs high.

Most of the journalism and law enforcement communities agree that reporters should be able to do their work covering these protests, so long as they are not breaking laws or interfering with police action.

But differing definitions of “interfering” and even “law-breaking” have enflamed debate between these groups over essentially who-is-impeding-who doing their job. In some situations, the argument is complicated by the somewhat chaotic crowd situations that surround them. (It should be worth noting, however, that some of the situations of reporter harassment and arrest also occurred during small, tame events, such as when visibly credentialed, equipment-laden Milwaukee Journal-Sentinel reporter Kristyna Wentz-Graff was one of three arrested during a street march of only 30 protestors.)

Take for example New York City, where the birthplace of the Occupy Wall Street Movement has become a microcosm of these strained police-press relations. Faced with reports of 26 journalists (five of them credentialed by the New York City Police Department) arrested the night of the November Zuccotti Park eviction alone and allegations of roughing up journalists and blocking their newgathering, city officials staunchly defended police actions.

There was no media blackout, they claimed. The media was kept back in press pens for their own safety.

Many of the reporters did not hold up-to-date NYPD-press passes, the city alleged.

While some of the journalists had their arrests voided, the city said others were rightfully booked for trespassing or disorderly conduct.

“You don’t have a right as a press person, I don’t think, to stand in the way just in the interest of getting the story,” said New York Mayor, and media mogul, Michael Bloomberg during his weekly radio slot on WOR-AM.

Although the press quickly dismissed some of these explanations and media advocates as unfounded (do reporters in dangerous war zones get held back for their own safety?, quipped a few journos), that question of interference and reporters rights again dominated debate.

Press and civil liberties advocates, however, seemed to signal that they thought the actions of press interference they had documented during the Nov. 15 eviction reflected a clear, department-wide policy to keep reporters away from the scene. This obstruction, a sternly-worded letter signed by media organizations including the Reporters Committee for Freedom of the Press said, amounted to actions “more hostile to the press than any other event in recent memory” and were “inappropriate, if not unconstitutional.” In short, these actions were not taken out of legitimate concerns about journalists interfering with police work.

“We have never argued, for example, that the press or news photographers should be able to trample all over a crime scene, get so close they are in the way of arresting people, or get in the way of police going after a suspected criminal, compromising the ability of the police to do their jobs,” said David Diaz, vice president of the New York Press Club (NYPC) and spokesperson for the Coalition for the First Amendment, a newly formed association of New York-area media outlets that rose out of deteriorating police-press relations in that area.

“The Zuccotti situation is the quintessential scenario that justifies many of the freedoms of the press,” he said, adding that if the press has any mandate at all under the First Amendment privileges, it is to report on government actions of controversial and potentially illegal nature. “Certainly going in and using police force to evict peaceful protestors from a park, even if they were there illegally, is something the press has every right to witness and report. It was in public.

But when there are organized efforts to prevent the press from reporting on these events, such as what he said happened during the eviction, it means the administration gets to control the narrative of the events, Diaz said.

At least part of the problem, media advocates and police agree, is the permeation of the everyone-has-a-camera, gotcha-moment, viral video culture of today. Whether it is the lens of a citizen’s camera-phone or a journalist’s professional video equipment, some officers are reacting to being in the spotlight for actions that formerly occurred in the shadows.

In fact, some of the most damning portraits of police action during the Occupy movement, for example the cop pepper-spraying the line of peaceful protestors near Wall Street, came from an observer pointing a camera right at them. Most of this coverage was taken from a reasonable distance in public, but whether some of the attempts to get close to the action for the perfect shot are interfering with police work is still up for debate. But at least one police chief, Tim Dolan of Minneapolis, thinks it usually does not interfere.

“Cameras in your face are not going to impede officers anymore. Everyone who is out there has a camera or a cell phone, and you see scenes of a bunch of people charging a police line and 50 people recording him or her. Cameras are not an obstruction anymore,” he said.

So in the disagreement about interference and law breaking, where is the line drawn?

Legally, the rights of reporters to gather the news in these types of situations are somewhat murky.

What is absolute is that reporters have the same rights as other citizens to observe, photograph, and record in public spaces. This means that authorities cannot, for example, keep journalists back for their own safety or stop them from photographing on a sidewalk if the public is allowed in those areas.

In terms of specific, guaranteed First Amendment rights for newsgathering, however, it is more complicated.

Most courts have ruled that the same laws apply to the press and the public. So a journalist is not immune from charges such as unlawful assembly or disobeying a police order, even when they are doing so because they are covering the allegedly law-breaking protestors brought in on the same charges. An arresting official still has to prove probable cause for arrest, however, and cannot arrest a journalist simply out of irritation or frustration.

In a limited number of cases, reporters can successfully sue police officers under the First Amendment for unlawfully interfering with their newsgathering. To be successful, reporters must prove that they were detained specifically because they were covering the news, not just because they were suspected of breaking a law. But this is a difficult assertion to prove in court: Did police arrest the reporter because they were trying to control the scene, or was it to stop the journalist from reporting?

And journalists can sometimes turn to other defenses. For example, a law may not give the reporter the right to follow protestors as they trespass on private property, but he or she may be able to get their charges dismissed on more technical arguments about intent or lack of damages.

Ultimately, however, the choice about referring reporters for prosecution in these situations comes on a department-by-department basis.