AP Photo/The Washington Post, Wesley Lowery
This article first appeared on the blog of the American Constitution Society
The unrest in Ferguson, Mo., concerns civil rights issues of the most fundamental nature. And the concerns of journalists who get arrested covering that unrest seem to pale in comparison to the issues underlying the protests. But when we see things like this week’s decision to bring charges against journalists who were arrested last year, it’s important to remember that the right to cover these controversies is as important to the public as the right to protest in the first place. Without news accounts – be they by established “mainstream” media or independent bloggers – the controversy could not be fully understood by those who want to know what happened and what needs to change.
The decision to prosecute – which apparently affects nearly everyone arrested last summer, not just the journalists whose cases have been publicized this week – seems odd, and tied more to the looming statute of limitations deadline than the renewed protests there. It also seems that prosecutors may be pursuing this only because the county still fears that those arrested for exercising their rights will bring civil rights suits; an offer to drop criminal charges can make those suits settle quickly.
Each arrest has a unique set of facts, but many of the journalists arrested last year were simply gathering news. The two reporters whose arrests got much of the attention, The Washington Post’s Wesley Lowery and the Huffington Post’s Ryan Reilly, weren’t even involved in a contentious encounter. They were instead sitting in a McDonald’s, recharging their phones. The reporters were ordered to leave a public restaurant, and while they were leaving, they asked questions and videotaped the officers. This is perfectly lawful and appropriate behavior; they weren’t refusing to leave, just daring to ask questions while they were being forced out of a public place. Their newsgathering does not justify the officers’ decision to arrest them for “disobeying” an order, and certainly cannot justify a trespassing charge in a restaurant open to the public.
After these two reporters were released, “it seemed reasonable to assume that police had figured out how foolish they would be to come down on two legitimate journalists peacefully covering a major news story,” as The Washington Post recently said in an editorial. But these charges now show that Ferguson officials have no qualms about their efforts to contain a controversial story by interfering with those who would report on it.
The other reporters who were arrested during the summer were likewise only covering an important story. There have been no credible allegations, much less documented proof, that they were interfering with police, disturbing the peace, failing to obey lawful orders, or in any way contributing to the chaos on the streets at that time. Even in the few instances where a reporter was on the wrong side of a police line or did not move off of a sidewalk quickly enough, there needs to be enough flexibility by police and prosecutors to recognize that those who are trying to inform the public are not the source of the problem, and should not be restricted in this way. Charging reporters with crimes for covering a story sends a clear signal that police do not want their actions documented, and thus makes the situation worse.
Most importantly, while police have to make snap decisions in the heat of the moment, prosecutors who later determine whether charges will be brought do not have the same handicap. With a full year to review the situation – a year in which the actions of Ferguson officials have been exposed as highly questionable in other ways – and decide what actions constitute a crime, prosecutors have no excuse for making poor judgment calls that do not respect First Amendment rights.
Last year, after hearing that reporters were being arrested in Ferguson, then-U.S. Attorney General Eric Holder, Jr. said in a statement that “journalists must not be harassed or prevented from covering a story that needs to be told.” That statement should not have to be made. But in Ferguson, it needs to be made again.