Court: U.S. Court of Appeals for the Eighth Circuit
Date Filed: July 2, 2021
Update: On April 6, 2022, the U.S. Court of Appeals for the Eighth Circuit issued an opinion reversing and remanding the district court’s decision.
Background: In 2017, St. Louis Metropolitan Police maced and arrested former St. Louis Post-Dispatch reporter Michael Faulk as part of a kettle and mass arrest following protests sparked by the acquittal of former police officer Jason Stockley in the 2011 death of Anthony Lamar Smith. Faulk brought a civil rights action in federal court, alleging his First and Fourth Amendment rights had been violated.
One of the officers involved moved to dismiss the case based in part on qualified immunity, a legal doctrine that may protect government officials from being held personally liable for violating someone’s constitutional rights. The district court denied the motion, and the police officer appealed.
Our Position: The Eighth Circuit should affirm the lower court’s denial of the defendant’s motion to dismiss.
- Reporters cannot safely inform the public about protest activity if mere presence at the scene provides grounds to arrest or assault them.
- A journalist’s mere presence at the scene of an unlawful assembly cannot support probable cause, arguable probable cause, or reasonable suspicion to believe that the journalist is a participant in the assembly.
- Liability for a journalist who observes and reports unlawful activity, but fails to intervene, would be patently unconstitutional.
Quote: “When law enforcement subjects journalists engaged in lawful newsgathering to kettling, the use of force, or arrest — particularly, as here, when they claim to be effectuating a general dispersal order — they not only violate important First Amendment protections, they also deprive the public of essential reporting on how law enforcement itself responds to protest activity.”
Related: In 2020, the Reporters Committee filed two friend-of-the-court briefs in Index Newspapers v. U.S. Marshals Service et al., a case concerning a class-action lawsuit filed on behalf of journalists targeted by law enforcement while covering Black Lives Matter protests in Portland, Oregon.