From the Fall 2009 issue of The News Media & The Law, page 8.
When Matt Lepacek became involved in a heated exchange with a campaign staffer after a debate during Rudy Giuliani’s bid for the presidency, the freelance reporter was arrested and charged with criminal trespass.
Though Lepacek wasn’t affiliated with a traditional newsroom — he was reporting for Infowars.com, an Internet site run by someone who publicly says he “combines his media presence with actual physical activism” — his arrest highlights the murky issues that surround covering politically charged events as a journalist and sometime-activist.
“They are not journalists in the traditional form,” said Jeff Fruit, the director of Kent State University’s journalism program, but they have “changed the traditional sender-receiver model of reporting. More people are participants in the news process.”
As more and more mainstream news organizations ask citizens to contribute eyewitness reports, the line between participant and news gatherer is increasingly blurred. At the G-20 Summit in September, for example, hundreds of people were arrested in Pittsburgh during an anti-globalization protest, several for broadcasting information about police movements to other protesters via cell phones and Twitter. Though the protestors used the same delivery methods as citizen journalists, attorneys say what matters in a legal sense was their intent.
“Reporters don’t have any more rights than your average citizen,” said Minnesota lawyer Bill Tilton, who handled hundreds of calls on the Reporters Committee’s convention hotline after arrests at the Republican National Convention last year. “The question for police authorities is that if someone’s a journalist, they’re not there to break the law, but to cover it. They’re there to observe, not participate … and there is no probable cause that person is committing a crime.”
The law delineates between observation and intent, and the reality is that law enforcement sometimes interprets that differentiation by distinguishing between journalists and citizens, attorneys say. Though Lepacek had a CNN-issued press pass, many online journalists are not credentialed, which may be the easiest way to establish your intent as an observer and not a participant.
“It’s an automatic signal, an announcement that I may be in the area but I’ll announce who I am . . . the problem then becomes who is doing the credentialing,” Tilton said.
The ability of nontraditional journalists to obtain press credentials varies among the institutions that issue them. The Capitol Correspondents Association of California first issued a press pass to a blogger in March 2007; during the 2004 presidential election, both political parties issued press passes to Internet journalists during the conventions.
“They’re acting as fact uncoverers and I’m for the certifying of fact uncoverers,” said Todd Gitlin, a professor of journalism and sociology at Columbia University. “There was no such thing as a reporter or a reporting organization in 1791, the First Amendment was promulgated at a time when the press was a bunch of individuals popping off one-page newsletters.”
Though a press credential won’t protect a journalist from arrest while covering a politically charged event — 46 journalists were arrested or detained during last year’s Republican National Convention, the Minnesota Independent reported — it can be a powerful tool to establish the reason for your presence. After the convention, city attorneys in St. Paul, Minn., dropped the charges against arrested individuals who proved that they were journalists.
“What we consider to be the press at various junctures is a historically shifting phenomenon and it’s not enshrined in granite,” Gitlin said. “Clearly different things are meant by journalism today than were meant 50 years ago.”