As more journalists covering civic unrest get accosted, hit by projectiles, pounced on by demonstrators and arrested by law enforcement officers, safety and legal precautions are as key to newsgathering as video recorders and notepads.
That means preparing ahead of time with training, equipment and an understanding of applicable laws.
When it comes to legal rights, Bernie Rhodes, the head of the media law group at Lathrop GPM in Kansas City, Mo., has a refrain: “The First Amendment is not a get-out-of-jail-free card.”
“Obviously, you don’t want to get arrested because that interferes with what you are doing,” he said in an interview. “It might make for great TV if it’s live, but it’s still interfering with what you are doing in terms of newsgathering.”
“On the other hand, if police are really asking you to move because they don’t like you being there, that’s a whole different issue,” he said. Court decisions have concluded that journalists have a First Amendment right to film as long as they are not interfering with police activities. “Then you have to decide whether you want to stand your ground.”
The National Press Club Journalism Institute and the National Press Foundation partnered last year on a program on how journalists can protect themselves from physical threats. A recurrent piece of advice: If you see it coming, avoid the conflict.
Danny Spriggs, The Associated Press’ vice president of global security, encourages team reporting to provide 360-degree coverage in high-risk environments. Another program participant, Cmdr. Guillermo Rivera, head of special operations for the Washington Metropolitan Police Department, said that when a demonstration becomes chaotic, journalists should watch for cues from the crowd and separate themselves as much as possible from violent outbreaks.
Protective gear is essential, but has not been commonly seen during the recent protests. Reporting veterans recommend helmets, shatterproof goggles, and masks. The frequent use of tear gas by police makes saline solution to rinse out eyes an essential accessory.
Other security tips:
- Make sure someone (an editor, colleague, lawyer, friend) knows where you are reporting from.
- Have an exit plan. Look for points of retreat and know the location of the nearest medical facility.
- Carry power chargers, water, snacks, and sun protection.
- Avoid a confrontational tone. A smile can help diffuse tension.
We reached out to Rhodes on Tuesday because he is an experienced First Amendment lawyer. In 2016, he filed a lawsuit against St. Charles County, Mo., on behalf of three Al Jazeera journalists who were injured by tear gas fired at them by a county SWAT team during the 2014 protests over the killing of Michael Brown in Ferguson, Mo.
Before a journalist even goes into the field, what should they know about their rights and how should they prepare?
Rhodes: They should know that, notwithstanding the broad sweep of the First Amendment, journalists do not have the right to break the law.
That comes up in most instances when we are dealing with such issues as a curfew. Most curfews, when properly drawn, will have an explicit exception for news media. Here in Kansas City, the curfew we have is very weirdly written. It does not have a specific exemption for the news media. But it also doesn’t have one for the fire department or the police department. It just says you won’t loiter around. OK, press aren’t loitering.
How should journalists proceed when there is a curfew?
Rhodes: If there is a curfew, I strongly advise finding the curfew [order]. Don’t just rely on a press statement of what the curfew order said. Find the actual curfew and be prepared to stand your ground if you are threatened with arrest for violating the curfew.
If the curfew is properly worded, does not exclude the press, there is no First Amendment get-out-of-jail card. You can often negotiate with authorities. Most of these curfews are being issued by mayors. There is nothing at all wrong with making the public protest to the mayor’s office about, ‘What do you have to hide? Why aren’t you excluding the press from the curfew?’
The curfew in Minneapolis, for example, expressly excludes the news media. If your city curfew doesn’t, then make a big deal about why that doesn’t happen.
Now, there are lawyers here. Obviously, you don’t want to get arrested because that interferes with what you are doing. It might make for great TV if it’s live, but it’s still interfering with what you are doing in terms of newsgathering.
The whole separate issue to be sorted out months later is whether you are going to be convicted of violating a curfew. That’s even less likely. But first you don’t want to get arrested.
What about other circumstances with police? What if they ask you to move from your location?
Rhodes: Clearly, if you are interfering with a police operation you have an obligation to move even if you are the press. On the other hand, if police are really asking you to move because they don’t like you being there, that’s a whole different issue. In the last several years, it’s become clear from repeat court decisions that there is a First Amendment right to film the police if you are not interfering with their activities.
So if you are sufficiently far away, you are not interfering, there is no safety concern, you have clearly identified yourself as the press, they don’t think you are a rioter in disguise about to prey on them, then you clearly have a constitutional right to film them.
If you are asked to move and if you can get out of the way and still do your job, then I strongly encourage you to do that. If on the other hand, if you think you are being asked to move just as a subterfuge to keep you from filing something that is going on, then you have to decide whether you want to stand your ground — because you are entitled to stand your ground if you are not interfering in a police operation.
What can journalists do to protect themselves from arrest?
Rhodes: It helps to develop a relationship with the police PIO [public information officer]. Sometimes there’s no chance of that happening. That’s particularly problematic for out-of-town journalists, network journalists who are coming to an area who don’t have their relationship with a local PIO.
If you are arrested or fired upon, what should you do?
Rhodes: My Al Jazeera case is still going after four years. … The other reason the lawsuit is even still going is because the photographer had set the camera on a tripod. They were getting ready for a live shot and he’d gone ahead and hit the record button. So the entire incident is captured on video from a stationary camera. And it’s just painfully obvious from watching the video that the cop’s story of what happened is just nowhere close to the truth. Now, if it weren’t for that video I’m sure we would have been kicked out of court years ago. …
And so, the whole idea that a picture’s worth 1,000 words; a video is worth a million words. So if you’re a reporter out on the field — you have to balance the issue of battery and disk capacity — but roll. Video is going to be your friend, not your enemy. Because you’re out there doing God’s work, and you’re battling people who are not. And so that video that you’re recording is going to insure to your benefit, not to the cop’s benefit and not to the protesters’ benefit.
So having that documentary evidence of what occurred, is going to be valuable both for your job … but also to the extent that afterwards there might be appropriate action to be taken.
That’s what enabled us to pursue the claim. Without that, it becomes a classic she-said-she-said. And in those instances, the cops are always going to win.
So you mentioned the lack of a media carve out in the Kansas City curfew order. Is anybody challenging that?
Rhodes: This was an instance of working through the PIO and explaining that we’re not loitering. You can’t shop during the curfew. So we’re not loitering, we’re not shopping. We’re engaging in lawful activity of newsgathering. The city has agreed with that. The curfew has been in place for several nights now, and we have had no issues with the police attempting to enforce it against the news media.