DOJ: Dispersing journalists from protests violates First Amendment

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Credit: Rhododendrites, via Wikimedia Commons, CC BY-SA 4.0. NYPD officers respond to a protest.

Last month’s arrest of veteran photojournalist Stephanie Keith ([link removed]) at a vigil for Jordan Neely was just the latest in a series of egregious press freedom violations by the New York Police Department.

Other notable examples include officers showing up at a journalist’s home to arrest him for larceny after beating him with a baton (they falsely claimed he tried to steal the baton while trying to protect himself), and officers assaulting a journalist and stealing his bicycle after seeing him put a notepad in his backpack. Officials’ efforts to blame the abuses on the chaos of 2020 are no longer credible as they persist three years later.

A coalition of press rights organizations has demanded ([link removed]) that prosecutors drop the charges against Keith. But the damage is already done — Keith wasn’t able to do her job at the vigil, and her arrest sent an ominous message to other journalists about the consequences of reporting on cops in New York.

Read more on our blog ([link removed]) .


** DOJ: Dispersing journalists from protests violates First Amendment
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As recently as 2020, Department of Justice lawyers argued that police orders to disperse crowds of protesters apply to journalists covering those protests, regardless of whether the journalists pose any threat.An appellate court rightly rejected ([link removed]) the DOJ’s arguments then, and a recent investigation of the Minneapolis Police Department reveals that the department has finally changed its position:

“The First Amendment requires that any restrictions on when, where, and how reporters gather information ‘leave open ample alternative channels’ for gathering the news. Blanket enforcement of dispersal orders and curfews against press violates this principle because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” (Emphasis added)

As we wrote on our blog ([link removed]) , it’s certainly a step in the right direction, but for now it’s only on paper. Let’s hope it leads to the end of arrests and prosecutions of journalists covering protests for doing their jobs.


** Protecting journalists, whistleblowers, and activists from SLAPPs
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This week, we wrote about a recent victory for Greenpeace ([link removed]) — and free expression — over a strategic lawsuit against public participation, or SLAPP, that the environmental group faced because of its activism.

A SLAPP is a lawsuit brought to chill the exercise of First Amendment rights, often to silence and punish the plaintiff’s critics, including local news outlets ([link removed]) and individual journalists ([link removed]) . In many cases, powerful individuals or corporations know their critics are protected by the First Amendment but sue anyway, hoping to drain their bank accounts through legal costs. Thankfully, in most states ([link removed]) , targets of SLAPPs can fight back by using anti-SLAPP laws.

However, there’s still no federal anti-SLAPP law, leaving reporters exposed to SLAPPs in federal courts. That could change if Congress acts. For too long, we’ve allowed the comfortable to abuse the law to afflict the press. It’s time for Congress to pass a federal anti-SLAPP law ([link removed]) so that the press can instead be truly free to afflict the comfortable.


** What we’re reading
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A resounding reaffirmation of Times v. Sullivan ([link removed]) . This week the Supreme Court reaffirmed the continued viability of New York Times v. Sullivan, the landmark 1964 case prohibiting politicians from suing journalists and others over unintentional errors. The court explained that Sullivan is “based on fear of ‘self-censorship’ — the worry that … the uncertainties and expense of litigation will deter speakers from making even truthful statements. The First Amendment … ‘requires that we protect some falsehood in order to protect speech that matters.’” It’s a welcome development following recent attacks on Sullivan by politicians ([link removed]) and judges ([link removed]
eme-court/index.html) alike.

Time is running out for Julian Assange. If MPs do not act, how can they say they value free speech? ([link removed]) We’ve repeatedly condemned ([link removed]) the unconstitutional Espionage Act charges faced by Julian Assange for the “crime” of obtaining and publishing classified documents, just like other investigative reporters do routinely. Not only could the U.K.’s members of Parliament be doing far more to stop Assange’s extradition to the U.S. but the Biden administration could end this threat to journalism in an instant by dropping the case ([link removed]) .

Judge agrees to narrow but not lift gag order in University of Idaho student slayings case ([link removed]) . Almost six months after the fact, a judge narrowed a clearly unconstitutional gag order in a notorious criminal case about the killings of four college students. As we wrote when it was issued ([link removed]) , this order created widespread confusion and wreaked havoc on the free press trying to cover the trial. While the judge’s more recent order is good news, it’s seriously problematic that the press and public were deprived of their rights for so long. Courts must expedite these matters.

Top NIH official advised COVID scientists that he uses personal email to evade FOIA ([link removed]) . We’ll say it again louder for the public officials in the back: Using personal email for government business is not a “get out of jail free” card when it comes to FOIA. And it’s deplorable when public officials treat public records laws as something to avoid and evade, rather than an important protection for the public’s right to know. Shame on this National Institutes of Health official for trying to use personal email as a workaround to FOIA requests — and on every other public official doing the same thing, even if they’re sneaky enough not to write about it in an email.
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