A: The First Amendment guarantees the freedoms of speech and the press, and these protections focus on the right to communicate (the right of newspapers and radio or TV stations to publish or broadcast, and the right of citizens to criticize the government). Less clear are the protections for gathering information. Although the U.S. Supreme Court has acknowledged that newsgathering is important, it has not determined how much the First Amendment protects it. Court decisions have suggested that reporters do not enjoy greater information-gathering rights than members of the public. Rather, reporters act as public representatives when gathering facts
A: While it’s against the law to obstruct traffic, the press and protesters alike are generally free to gather the news in public places, such as parks and sidewalks. However, the government may impose restrictions on when, where and how the “public forum” is used. (For example, a city council might require a permit to use a megaphone.) Reporters must abide by these content-neutral, reasonable restrictions. Being a reporter also does not give a reporter the right to break the law.
Assuming a protest is in a public place, reporters don’t need credentials to cover it. They enjoy a right of access along with the public. However, even credentials issued by the police won’t make reporters immune to arrest. Credentials may allow journalists to cross police lines (at the discretion of on-site officers) and will establish a reporter’s reason for being at the protest site (i.e., to gather news rather than to protest). The police often will respect the rights of credentialed reporters.
Q: What happens when reporters are detained or arrested while covering protests? Can they use the First Amendment as a defense?
A: If a reporter is detained or arrested, charges may or may not be filed. Because charges were not filed against reporters who were detained or arrested while covering the Ferguson, Missouri, protests following the death of Michael Brown, they were released and did not have to appear in court. The U.S. Supreme Court has ruled consistently that laws applying to the public also apply to the press. This means that reporters may not hide behind the First Amendment if they commit crimes while gathering the news (for example, interfering with the ability of a police officer to perform his or her lawful duties).
Q: Do reporters have the right to record police activity in public places?
A: Generally, the media and members of the public have a right to record public events. Courts have even noted that recording police activity promotes the discussion of public affairs and can uncover potential police abuses. Courts acknowledge that the police can be burdened by this First Amendment right of citizens. However, the right to record public events is not absolute, however, and may be restricted by when, where and how public events can be recorded. For example, an officer could close an accident scene for safety reasons, thereby restricting the public’s ability to record police activity there.
Q: What happens if a police officer unlawfully interferes with a reporter who is in the process of gathering news?
A: The reporter would file a “1983 action” in federal court under 42 U.S.C., Section 1983, which allows people to sue government officials for depriving them of constitutional or civil rights. The reporter would claim that, by unlawfully interfering with newsgathering by denying access to a public forum for no good reason, the police violated the reporter’s First Amendment rights. In such a case, the court would consider whether the denial of access infringed on the reporter’s right to be at the scene.
This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by professor and attorney Jonathan Peters of the University of Kansas, who is the chair of the OSBA Media Law Committee. Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.