Wick Communications

Can the police do that?

In First Amendment on November 17, 2011 at 11:48 am

I’m sure you have read that reporters attempting to do their job by covering the evictions of Occupy Wall Street protesters found themselves under arrest early Tuesday morning. Several reporters, including two AP staffers, were taken away and others say they were roughed up in the process.

Which begs the question: is that OK? Did the reporters have a First Amendment right to be there?

I’m not sure I have enough information to say for sure whether reporters’ constitutional rights were violated at the park that day, but I think we should make a distinction between an illegal crackdown on reporters and one that is just dumb.

Eric Wemple of the Washington Post points out in his blog that the police behavior was contrary to their own interests. For one thing, reporters are sure to cover their own arrests. There was professional journalism in the New York Daily News and the Associated Press suggesting Mayor Bloomberg’s administration went too far. That isn’t the kind of press authorities need when they are cracking down on a protest that has fairly wide support. As Wemple says,

Why leave the journalism in the hands of the protesters? By pushing out the media and going tete-à-tete with the protesters, the authorities marginalized those who would give them the fairest shake. …

I think if Bloomberg’s more subtle handlers had thought that one through, they would have seen the benefit in having at least a pool reporter with more access.

Former Miami Herald Executive Editor and current Boston University professor Tom Fiedler told Poynter this week that, while he supports the reporters’ efforts to do their job at Zuccotti Park, they weren’t denied their First Amendment rights.

The amendment’s clause that “Congress shall make no law … abridging the freedom of the press…,” doesn’t mean that the press is free to go anywhere at any time. It certainly is not at all unusual for the media to be kept away from a potential crime scene during police action. (Similarly, reporters cannot wander into the Oval Office, sit in the corner, and observe anything that happens, claiming a First Amendment right to do so).

Unless I missed it, none of the reporters around Zuccotti Park were barred from publishing, broadcasting or otherwise informing others of what they witnessed during and after the raid. Nor am I aware that any photojournalist’s cameras were seized or destroyed, any recordings destroyed, nor any reporter kept from interviewing an Occupier by police after the raid ended.

Most of us have been kept away from some news event by cops at some point over the years. I have myself come very close to being arrested for violating a police order that I didn’t think lawful. I’m sympathetic to the plight of reporters at the scene, but I’d like to toss in a couple other considerations that may be relevant if you ever find yourself on the business end of a policeman’s baton.

  • Unlike most reporters in New York City, many of us have a close, personal relationship of sorts with the cops in our towns. In most cases – I’d say 95 percent of cases – that ongoing relationship is more important than the news of the day. That means, you don’t want to scream into the ear of the local police chief about your First Amendment rights unless you absolutely have to. He is guaranteed to not appreciate it and it may affect your ability to get the next two-dozen stories that require his cooperation. Remember that journalism is like baseball; there is a game every day. Don’t put the season at risk for any one play.
  • Know specific local law. In California, for instance, police agencies are expressly barred from keeping reporters from damage done due to natural disaster. Crime scenes yes, earthquakes no. I’ve actually talked about that one with our local Sheriff’s lieutenant and we’re on the same page … at least before the earthquake. I fully expect law enforcement to overreach in the event of an actual emergency. And we’ll take that day as it comes. That may be the 5 percent of the time that we need to assert our rights even if it means damaging our relationship with the local constabulary.

— Clay

 

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