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Protection from Evisceration

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From the Summer 2004 issue of The News Media & The Law, page 45.

From the Summer 2004 issue of The News Media & The Law, page 45.

There seems to be an unwritten rule in media law circles that any legal brief arguing for a journalist’s right to gather news should quote former Justice Byron White early on, usually right at the start.

“Nor is it suggested that newsgathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated,” White wrote in Branzburg v. Hayes.

That 1972 Supreme Court case, however, does not recognize a constitutional protection for newsgathering. In fact, the very next sentence of the opinion negates the idea of protected newsgathering: Restrictions on newsgathering are not the same as restraints on publication or speech itself, the court held.

White’s opinion for the court, which held that journalists do not have a constitutional privilege to refuse to disclose confidential sources before a grand jury, quickly led to a litany of instances in which journalists and news organizations had no special protections. The ruling approvingly cites the conclusion of an earlier Supreme Court opinion, Zemel v. Rusk, that the “right to speak and publish does not carry with it the unrestrained right to gather information.”

So then, what does the Supreme Court tell us about even a “restrained” right to gather information? Since Branzburg, the court has articulated a constitutional right of access to criminal court proceedings in a series of cases starting with Richmond Newspapers v. Virginia. But other than that, the high court has declined to recognize (either directly or by refusing to review cases) a constitutional right of access in other areas, ranging from civil courts and prisons to shopping malls and environmental protests on restricted lands.

Figuring out what right of access is guaranteed is complicated even more by how a journalist wants to protect that right. For instance, when talking about a “right” to cover an accident scene, are we talking about the right not to be interfered with, the ability to file a civil rights claim after the fact against an official who stops a journalist, or the interest in not being sued in civil court for an alleged privacy invasion? The distinctions, especially between being able to get the story in the fir st place and getting some form of remedy later, make a significant difference.

At a crime or other emergency scene, police officers are given great power to control access, as they should, and broad discretion in how to accomplish that. But this of course means that arbitrary distinctions will be made, and motives other than public safety can come into play — particularly when officials feel they are being harassed or ignored by a journalist seeking to cover a story. The myriad complaints of the photographers and reporters we hear from every year who are harassed, detained, interf ered with or even arrested while simply trying to cover a breaking news story will undoubtedly continue unabated for the foreseeable future.

But there is a new opportunity for action from the Supreme Court in resolving one aspect of the newsgathering right: whether a police officer can arrest a journalist just to stop him from covering a newsworthy event.

Miami photojournalist Albert Durruthy has petitioned the court in Durruthy v. Pastor to overturn an appellate court’s ruling that his civil rights case should be dismissed. His suit stems from his arrest while covering the federal government’s removal of six-year-old Elian Gonzales from the home of relatives in Miami in April 2000.

Durruthy was in a public street photographing the arrest of another photojournalist when a police officer ordered him to get out of the street. As he was backing up to a sidewalk while continuing to videotape the scene, another officer tackled him, arrested him and detained him in a police van for six hours, finally releasing him without charging him. It seems clear that the only purpose of the arrest was to stop him from covering the actions of the Miami Police Department. Although there had been sporadic rioting on the street earlier in the day, police were in control of the area and, as the arresting officer later admitted, it was clear that the man she arrested was a member of the press.

When the officer tried to get Durruthy’s civil rights complaint dismissed, U.S. District Judge Federico Moreno in Miami declined, finding that there were no reasonable grounds for arresting Durruthy.

“When an obvious member of the media approaches a police officer in a cleared street, is instructed to return to the sidewalk, and complies with the instruction, a police officer should be aware that a custodial arrest based on interference with a police officer is illegal,” Moreno found. The statutes the police used to justify the arrest — interference with a police officer and jaywalking — were negated by the fact that Durruthy was complying with officers’ orders when the arrest occurred.

But a panel of the U.S. Court of Appeals sitting in Miami (11th Cir.) rejected Moreno’s simple logic and dismissed the civil rights case. The mere fact that Durruthy was in the street justified his arrest for jaywalking, regardless of status, circumstance or compliance with other orders, the court held.

Durruthy’s last chance to revive the claim lies with the Supreme Court, which will consider his petition on Sept. 27. Of course, the court denies review in a vast majority of the petitions filed with it. And this is where the nature of the case — a civil rights claim for an unlawful arrest — comes into play.

If Durruthy had been detained and prosecuted, and were now contesting the validity of a conviction, his case would look different. It’s not hard to imagine the Supreme Court finding that a journalist engaged in newsgathering under these circumstances is entitled to some form of heightened protection from prosecution. But the stakes are higher in a civil rights claim, where the court is being asked to effectively punish a police officer over the initial decision to make an arrest.

So Durruthy faces an uphill battle, and this probably will not be the case in which the court takes on the issue of the right to gather news. But the issue is more important than ever, particularly because newsgathering cases in the future are more likely to involve that extra element that keeps cropping up these days: the need to protect people from terrorism threats through limiting access to places and restraining freedom of movement.

The time to acknowledge a newsgathering right is long overdue, for, as a wise man once said, without some protection for seeking out the news, freedom of the press could be eviscerated.

Gregg Leslie is the legal defense director of the Reporters Committee.