The First Amendment rights of reporters covering a February 2006 Federal Bureau of Investigation raid at a prominent Puerto Rican activist’s home were not violated when agents allegedly pushed, hit and pepper sprayed them, a federal appeals court ruled Thursday.
But even as the three-judge panel of the U.S. Court of Appeals in Boston (1st Cir.) agreed with the lower court that there was no First Amendment violation of their right to gather and report the news, it ruled that the journalists may have claims against the FBI for use of excessive force under the Fourth Amendment.
The six reporters can now go back to the lower court and take up that argument of unreasonable physical force.
The day of the raid, the reporters had gathered at the entrance to the apartment complex — which was private property — and only entered when the activist’s daughter waved them in.
In its published opinion, the court held that the wave was not enough to grant the reporters a First Amendment right to be on that private property, In addition, the court held that they had not established a constitutional right of access beyond the public’s right to be there.
The journalists also entered a nearby field the FBI agents used for part of the raid, and the court said there again reporters failed to show they had the right to enter the field.
Because the court decided that "the plaintiffs have not demonstrated that they were authorized to enter those properties," the court did not consider whether the agents’ actions interfered with the journalists’ First Amendment rights to gather and report the news.
The reporters had claimed that the agents punched, kicked and sprayed them without provocation, in violation of both their First and Fourth Amendment rights.
The U.S. District Court in San Juan will now determine whether their Fourth Amendment rights were violated. The court faulted the lower court for adopting the FBI’s version of events for the day rather than assuming the plaintiffs’ version was correct, as required when deciding whether to dismiss a case.
"Here, the plaintiffs’ submissions reveal that without any provocation or need for force, the defendants assailed them," Judge Juan Torruella wrote. "The plaintiffs contend that they were attempting to exit the gated area, but were impeded by the narrow pedestrian access gate. While bottlenecked in the space between the agents and the gate, the defendants hit some of the plaintiffs and, without warning, applied pepper spray directly to their faces."
The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of the journalists’ First Amendment right to be present and gather news in this case.