When Police Misuse Their Power to Control News Coverage, They Shouldn’t Be Allowed To Use Probable Cause As a Shield Against Claims of First Amendment Violations

Journalists face increasingly hostile conditions covering public protests, presidential rallies, corruption, and police brutality in the course of work as watchdogs over government power. A case before the U.S. Supreme Court threatens press freedoms even further by potentially giving the government freer rein to arrest media people in retaliation for publishing stories or gathering news the government doesn’t like.

EFF joined the National Press Photographers Association and 30 other media and nonprofit free speech organizations in urging the court to allow lawsuits by individuals who show they were arrested in retaliation for exercising their rights under the First Amendment—for example, in the case of the news media by newsgathering, interviewing protestors, recording events—even if the police had probable cause for the arrests. Instead of foreclosing such lawsuits, we urged the court to adopt a procedure whereby when there’s an allegation of First Amendment retaliation, the burden shifts to police to show not only the presence of probable cause, but that they would have made the arrests anyway, regardless of the targets’ First Amendment activities. EFF and its partners filed a brief with the Supreme Court October 9, 2018.

The court’s decision in this case may well have far-reaching implications for all First Amendment rights, including freedom of the press. Examples abound of journalists and news photographers being arrested while doing their jobs, swept up by police as they try to cover violent demonstrations and confrontations with law enforcement—where press scrutiny is most needed. Last year 34 journalists were arrested while seeking to document or report news. Nine journalists covering violent protests around President Trump’s inauguration were arrested. Police arrested reporters covering the Black Lives Matter protests in Ferguson, Missouri. Ninety journalists were arrested covering Occupy Wall Street protests between 2011 and 2012.

Arrests designed to simply halt or to punish one’s speech are common: police haul journalists and photographers into wagons amid protests, or while they’re videotaping police, or for persistently asking questions of a public servant. A tenacious reporter in West Virginia was arrested in the state capitol building for shouting questions to the Secretary of Health and Human Services as he walked through a public hallway. The journalist was charged with disrupting a government process, but, as is typical, the charge was dropped after prosecutors found no crime had been committed. This “catch and release” technique is not unusual, and it disrupts news gathering and chills the media from doing its job.

The case at issue before the Supreme Court, Nieves v. Bartlett, doesn’t involve the press, but the potential impact on First Amendment rights broadly and press freedoms, in particular, is clear. The lawsuit involves an Alaska man who sued police for false arrest and imprisonment, and retaliatory arrest, alleging he was arrested for disorderly conduct in retaliation for his refusal to speak with a police officer. The U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of all but the retaliatory arrest charge. The court said that while there was probable cause for the arrest, that didn’t preclude the man from pursuing his claim that his arrest was in retaliation for exercising his First Amendment right to not speak to police. This was the right decision, and we urge the Supreme Court to uphold it.

For the brief:
https://www.eff.org/document/nieves-v-bartlett-amicus-brief

For more on EFF’s work supporting the First Amendment right to record the police:
https://www.eff.org/deeplinks/2015/04/want-record-cops-know-your-rights
https://www.eff.org/press/releases/recording-police-protected-first-amendment-eff-tells-court
https://www.eff.org/deeplinks/2017/09/eff-court-first-amendment-protects-right-record-first-responders
https://www.eff.org/cases/fields-v-city-philadelphia

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Author: David Greene

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