Arrests of reporters climb, but precautions can be taken

From the Summer 2000 issue of The News Media & The Law, page 3.

Reporters are often on the front lines of highly charged confrontations and sometimes find themselves arrested or harassed by police for doing nothing more than covering the story. But journalists and attorneys can take steps to prevent arrests and to minimize the damage when they occur.

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With the July 4, 1999, holiday now past, reporter Brian Hansen had a feeling that government officials would soon try to end a week-long standoff between environmental protesters and the U.S. Forest Service at Vail ski resort.

A three-year Colorado Daily veteran, Hansen had for months been covering the off-and-on-again protests against Vail’s efforts to expand. Hansen knew that a U.S. District Court in California had recently approved a decision to shoot pepper spray directly into the eyes of environmental protesters there, and he wanted to see first hand whether Forest Service personnel would use pepper spray to remove the environmentalists from Vail.

He camped out on the mountain’s slope, not far from where the protesters had blocked a construction road. Rousted from his tent in the early morning hours of July 6, Hansen witnessed dozens of armed and camouflaged officers rush into the area and establish a perimeter around the protesters.

A U.S. Forest Service officer soon announced that a closure order had been issued for that part of the mountain and that anyone who remained after 15 minutes would be arrested. Unclear what area the closure order affected, Hansen asked an official where the press could go to monitor the action. A spot near the bottom of the mountain, he was told.

Knowing he would be unable to see the protest site from there and believing he had a First Amendment right to cover the news, Hansen refused to leave the scene. He was then arrested, placed in handcuffs and escorted out of the closure area.

Hansen is one of the dozens of journalists arrested or harassed by law enforcement officials each year. Although charges are dropped or dismissed against most of these journalists, Hansen has not been so fortunate. Regardless of their outcome, such criminal actions against journalists represent serious threats to press freedoms in this country, journalists and lawyers say.

“I am an aggressive reporter. I don’t make any apologies for it. That’s what my job is,” Hansen says. “It’s made doing my job very difficult. After the arrest, I went back to work. . . . Sources would say, ‘I can’t talk to you because of your legal situation.’ I am being penalized for doing my job.”

Among the journalists covering the Elian Gonzales saga in Miami during the first half of this year was Los Angeles Times photographer Carolyn Cole. Cole was arrested April 22 while covering a protest of the Immigration and Naturalization Service’s decision to seize the Cuban boy from his extended family’s home.

“I think even the arresting officer knew it was a bogus charge,” Cole says.

The charge for throwing a deadly missile — rocks — at police was quickly dropped but not until after Cole had spent eight hours in jail, eight hours that she should have spent taking photographs, says Karline Goller, deputy general counsel for the Times. A great affront to the First Amendment comes when a journalist is arrested and taken away from a story, Goller says.

“There is a harm, there is a foul,” Goller says. “The whole world missed an understanding that her photographs could have provided. She’s a great photographer.”

Attorney Jeff Harris successfully defended Savannah Morning News photographer Matt Moyer against a February arrest on an obstruction charge. A trial court dismissed Moyer’s case, finding no probable cause to support the arrest. Harris is now representing Moyer in a civil suit.

“If a reporter gets arrested by police, it’s just human nature that it would lead a reporter to be less aggressive,” says Harris, whose firm represents Morris Communications, owner of the Savannah Morning News. “It chills speech.”

The First Amendment does not give journalists an unfettered right to gather news. There are places journalists may not be allowed to go when covering the news.

Police may restrict access to places to protect safety or to prevent interference with criminal investigations. Journalists do not have greater rights than the public’s to access crime scenes, nor do they have lesser rights. A journalist who crosses a crime scene perimeter or interferes with a police officer may be subject to arrest, usually on some sort of obstruction charge.

“Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded,” the U.S. Supreme Court announced in its 1972 Branzburg v. Hayes decision.

Sgt. Joe Gentile has worked with countless journalists in his 28 years as a public information officer for the Washington, D.C., police department, the last six as director. While he tries to keep the media sufficiently informed during big news events, Gentile says he also understands that journalists have a desire to get as close as possible to the news they are covering.

His advice for how journalists can stay out of trouble: Follow a police officer’s instructions when covering a crime scene or an event where police are trying to control crowds. Gentile conveyed this message to journalists before April’s International Monetary Fund and World Trade Organization meetings in Washington, D.C.

“I reminded them that if they did not follow the rules that they would be arrested, just like everybody else,” Gentile says. “I know they feel they have a job to do, but it has to be balanced against the confines of the law.”

Nonetheless, Carol Guzy, a three-time Pulitzer Prize-winning photographer for The Washington Post, was taking pictures from the middle of an April 16 protest march when police arrested her along with 600 marchers.

“All I could think then was how unfair it was, but, looking back, it’s clear that I’d gotten caught up in a bigger sweep,” Guzy wrote in a May 7 article in the Post. “I got out of jail earlier than most, with a little help from the Post. Six hours after my arrest, an officer came with a handful of paperwork dropping the charges and declaring me a victim of circumstances. By then, it was too late to use most the of film I’d shot that day.”

Better communication and increased tolerance can go a long way toward preventing journalists from getting arrested.

“Most of the problems that do occur are from a breakdown in communication,” Gentile says.

Hansen agrees, saying he would have left the closed off area had he been told the border was less than 100 feet away, where he would have had a clear view of the officers and environmentalists. Instead, he was ordered to the bottom of the mountain, where a public information officer was to be waiting.

“I was not asking to stand in the fresh blood of a murder scene. I know law enforcement has a job to do, and they can’t be distracted by reporters. I was just asking for reasonable access to gather news,” he says. “I think my situation would have been easy to avoid. . . . I wasn’t trying to make some political statement or challenge the constitutionality of the closure order.”

Not all journalists are arrested by accident, however. Some are targeted simply because of their profession, others for particular stories they have written or photographs they have taken.

Morning News photographer Moyer was working on a feature package about amateur boxing at fight clubs when he saw a spectator being led outside by a police officer. He followed the pair outside and began taking pictures of the police officer making the arrest. The officer ordered him to stop, and, fearing that he would be arrested himself, Moyer eventually stopped taking photos.

But when the officer spotted him taking notes, he arrested him. Moyer’s civil suit alleges that he was singled out and treated differently than a member of the public because he was a journalist. At no point did police declare the area a crime scene, establish a perimeter or order the public to disperse, it says.

“In my personal view, these obstruction charges are overused,” Harris says. “My thinking is that these officers, sometime in their career, will have to deal with the media. They need to be better trained.”

While Hansen does not believe his arrest was in retaliation for earlier articles about the Forest Service or the development at Vail mountain, he thinks the government’s desire to continue his prosecution may bely something more sinister.

“I think it’s payback for them,” Hansen says. “I am not saying that this is a big conspiracy, that they were scheming to get me. I think that it was a complete coincidence. What I don’t think is a complete coincidence is what happened after my case hit the desk of the U.S. Attorney’s Office.”

Characterizing his arrest as little more than a misunderstanding about what area the closure order affected, Hansen fails to see much justification — other than retaliation or political motivations — to support the prosecution. Hansen was particularly troubled by accusations made by the assistant U.S. attorney handling his prosecution, Craig Wallace, during a preliminary hearing in May. Although he acknowledged that Hansen was a journalist, Wallace argued that Hansen was acting more like a protester than a journalist and that his previous articles suggested bias against Vail and the Forest Service. Wallace has refused to comment on the case.

“In my case, there is the question of what is really driving the prosecution of me,” Hansen says. “The question of bias came up . . . and even if it were true, and it’s not, it’s completely irrelevant. This whole issue of bias is just the government trying to get some political cover for this whole prosecution.”

Gentile disagreed that journalists are often targeted by police, suggesting Guzy’s arrest was partly an accident and partly the photographer’s fault for not following police orders.

“If an officer directs you to move — move,” Gentile says.

“I never heard the police ask the crowd to disperse,” Guzy wrote in The Post.

As the Los Angeles Times‘ newsroom attorney, Goller wears a beeper so she can be available to handle reporting emergencies. Goller was nonetheless caught off guard when Cole was arrested on the opposite side of the country the Saturday before Easter. She had not made arrangements with local counsel and bail bondsmen in the event a Times journalist was arrested, omissions she will not overlook again, she says.

“Most papers have relationships in their hometowns, but the issue is when reporters are out of town,” Goller says.

Because time was of the essence, Goller was working the phones trying to find local counsel even as she drove to her office. She settled on a Miami firm with both criminal defense and media law experience. Within hours, attorneys and a bail bondsman had been dispatched to the jail. Cole was released after eight hours.

In the future, Goller says both she and the Times‘ journalists in the field will be better prepared to handle an arrest. In addition to retaining bail bondsmen in the locales where its journalists are working, the Times is also instructing its reporters and photographers to try to give their notes or film to a co-worker or another journalist before incarceration, Goller says.

Goller also suggests that journalists carry proper identification other than a press pass to help speed the time it takes to process an arrest. Cole likely could have been released even sooner had she been carrying identification, Goller says.

“Arresting reporters is the ultimate chilling of a reporter’s speech,” Goller says. “That’s the most important — to get them out of jail and get them safe — and then get the story in the paper.”

Getting the journalist out of jail is only the first step, however. The next is to get the prosecutor to drop — or the judge to dismiss — the charges. While the First Amendment has not proven to be an effective defense to general criminal charges, some prosecutors and judges do appreciate the job journalists perform and are sympathetic to a First Amendment defense.

Although Goller recommends hiring a criminal attorney to handle the actual case, she notes that “it’s important to have a media lawyer connection because of the First Amendment connection of taking a reporter away from the story.”

A year after an ordinary story that led to a simple mix up that caused a criminal charge, Hansen’s case is still working its way through the U.S. District Court in Grand Junction, Colo. The longer the case drags on, the longer Hansen’s life remains in limbo and the greater the legal bills become. Although the Colorado Daily continues to support Hansen’s plight, it is unable to pay his legal bills. He left the newspaper in July. The Society of Professional Journalists’ Legal Defense Fund is now helping him cover his legal bills.

Hansen and his current attorney, Bill Richardson of Grand Junction, are hoping the case ends soon, without having to go to trial. They have filed a motion to dismiss, arguing that, as a journalist, Hansen had a right to be present on Vail mountain that day and to report on the Forest Service’s actions against the protesters. The parties have exchanged briefs since the May hearing, and a ruling is expected in the next month or two. Should the charge stand and his case go to trial, Hansen could face six months in jail and a $5,000 fine.

“I have prepared myself for it — if it comes to that. I have never been to jail, other than the day I was arrested,” Hansen says. “There’s no way I am going to plead to anything. . . . And even if I am fined, I can’t imagine paying it. It would be like extortion. They’ll have to hold me in contempt. I didn’t do anything wrong.” — Byron Brown