More than three dozen cities have imposed curfew orders, many without explicit exceptions for news gathering functions, increasing the possibility that journalists could be targeted by police while covering the protests that have erupted nationwide.
It was unclear how many had exemptions for news media, though a spot check of some cities, such as Cleveland, showed that journalists had to compel government officials to win access to curfew zones. A list and map compiled by the Reporters Committee for Freedom of the Press showed a patchwork of curfew orders across the country, with some providing clear exceptions for journalists while about a dozen did not.
The prospect of journalists being arrested for curfew violations added to the already existing tensions between police and journalists. Estimates placed the number of incidents against journalists involving arrests, pepper spray, tear gas, rubber bullets and assault at about 100 since the protests began.
We reached out to Linda Moon, an RCFP lawyer, to ask how journalists should proceed under the curfew orders.
In cities with a curfew exemption, what should journalists do to avoid arrest or confrontation with police? If threatened with arrest for a curfew violation, what should journalists do?
Moon: We are currently advising journalists to adhere to the same guidelines for covering protests in general. Here are some resources, including a guide and tip sheet.
Some tips from those resources include: finding an attorney ahead of the protest should an on-site situation sour; setting a timer on your phone to remind you to assess the situation; recording any interaction with police; and not consenting if asked for your photos, recordings or notes.
Remember, The Fourth Amendment protects you from unreasonable searches and seizures, so have a statement along the lines of “I’m a journalist, and my equipment and its contents belong to my company. If you want to access it, you will first need to contact their attorney” ready in case your materials are searched.
When cities have ordered curfews without journalism exemptions and journalists get charged, do those charges as a rule typically hold up in court?
Moon: Thus far, we are not aware of any instances where a curfew order without a media exemption was challenged in court. But we think that a general curfew order that doesn’t exempt the press raises significant First Amendment concerns and are working to put out additional resources on this topic.
Do journalists have any legal recourse when they have been hit by police fired projectiles — rubber bullets, flash bang devices, beanbags, pepper bullets and other so-called “less-lethal” weapons?
Moon: It would largely depend on the specific facts of the case. But, generally, a journalist targeted by law enforcement in the course of legitimate newsgathering (like, documenting policy activity in public places) may be able to recover damages under 42 USC § 1983 (the section of the U.S. Code permitting civil lawsuits for deprivation of rights).