Covering Coronavirus: Tips, best practices and programs

Your COVID-19 related legal rights: From drones to unemployment benefits

Mickey Osterreicher, general counsel for the National Press Photographers Association, has been sharing valuable tips on journalists’ legal rights related to covering the COVID-19 pandemic. We checked back with him on some other issues affecting journalists, from presidential campaign lawsuits to access to open records and meetings.

Last time we spoke, you discussed the rights journalists and photojournalists have to report and record from public spaces when they are in the vicinity of, say, a hospital. What are the restrictions and the rights surrounding drone photography?

Osterreicher: Anyone using a drone (or Unmanned Aircraft System) for journalistic purposes must fly pursuant to FAA’s Small UAS Rule (Part 107) and must qualify and keep current a Remote Pilot Certificate from the FAA. They must also register their drone and fly in compliance with any other state or municipal drone regulations.

NPPA has provided training and guidance for journalists and newsrooms regarding the use of drones and, along with Al Tompkins of the Poynter Institute, published a drone code of ethics. For the past three years, NPPA has held a Drone Journalism Leadership Summit at the Craig Newmark Graduate School of Journalism at CUNY, bringing together newsroom leaders, educators, the FAA, law enforcement and others to discuss this evolving technology.

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Last year NPPA, along with the Texas Press Association, challenged the Texas drone law as being unconstitutional and received support for its position in an amicus brief by a number of [Unmanned Aircraft Systems] organizations.     

Drones have been used for many years to show the devastation after major disasters and haunting images from this pandemic. The most recent example involves journalists using drones to obtain video of mass burials in New York City’s Hart Island, where they were cited for violating an antiquated NYC administrative rule.

Also the FAA has issued Temporary Flight Restrictions (TFR) prohibiting all unmanned aircraft “from flying within a stand-off distance of 3,000 ft laterally and 1,000 ft above any US navy vessel operating, transiting, or at port within the territorial waters and/or navigable waters of the USA.” Violations of the TFR can include confiscation of equipment, steep fines, and incarceration.

It is important to keep in mind that while public safety may be a factor in any reasonable time, place and manner, restrictions imposed on traditionally First Amendment-protected activities, such as newsgathering, must pass strict constitutional muster lest they chill free speech and freedom of the press to report on matters of public concern.

The president’s re-election campaign this week sued a Wisconsin television station for airing an ad from a Democratic super PAC that criticized the president’s handling of the pandemic. The ad has been criticized by independent fact checkers for taking Trump’s words out of context. Under Supreme Court precedent, is that enough to claim defamation?

Osterreicher: On March 26, 2020, reports noted that “former Vice President Joe Biden has released a video slamming Donald Trump for his response to the coronavirus crisis by placing the president’s comments about the outbreak alongside the rising tally of U.S. cases.” That same day, a lawyer for the Trump campaign demanded TV stations immediately cease-and-desist from airing the ad or else risk facing “costly and time-consuming litigation.”

Then on April 2, 2020, the Hill reported in an article that “President Trump’s reelection campaign tweeted out manipulated audio to make it sound like former Vice President Joe Biden called the coronavirus a ‘hoax’ in an effort to draw attention to what it views as Twitter’s double standard in policing political speech.”

This was followed by FactCheck.org reporting that “the Democratic super PAC Priorities USA Action has been running an ad falsely suggesting President Donald Trump called the coronavirus outbreak a ‘hoax.’ ” On April 13, 2020, it was reported that Donald Trump’s reelection campaign filed suit against WJFW-TV, owned by a  small broadcasting company in Wisconsin for airing the ad.

There has been much speculation about why the suit was brought in Price County Circuit Court, but one explanation may be found in that Wisconsin does not have an Anti-SLAPP (Strategic Lawsuit Against Public Participation) law, which provides for early dismissal of meritless lawsuits brought against those exercising First Amendment-protected rights.

For the most part, the cause of action in those lawsuits is for defamation. There is a long line of U.S. Supreme Court cases dealing with defamation, but the one that is most relevant is Masson v. New Yorker Magazine, Inc., which ruled that a report about a public figure cannot be considered “false” unless it is a gross distortion of the truth and that a direct quotation will qualify as such a distortion if the quoted words differ in their factual meaning from anything the public figure really said.

Aside from the fact that political speech (in the form of advertisements) is protected by the First Amendment, this most recent dispute points to a few things. It will be more difficult and costly for the small station in northern Wisconsin to defend against the lawsuit than it would for a larger station in a state with an anti-SLAPP statute. This will create a chilling effect in making broadcasters, publishers and social media platforms reluctant to air, publish or post these messages, and those may be seen as a perfect example of a lawsuit strategically brought during this economic crisis and election year to stifle public participation in political discourse.

We are seeing city councils and other local and state governments putting their meetings on video for the public to see. But are journalists encountering limits on their ability to get information from elected officials and public servants? 

Osterreicher: An almost textbook example of this issue occurred earlier this year when Vice President Mike Pence was appointed to chair the White House Coronavirus Task Force, after it was reported that a media gag order was placed on all government officials, directing that all communication had to go through Pence’s office, and several media appearances were canceled by top CDC officials.

In response, the Knight First Amendment Institute at Columbia sent a detailed FOIA request asking for “any records regarding policies and procedures governing public communications by CDC employees and contractors, as well as a variety of related items, including instructions sent by the CDC’s Public Affairs office.” When the government failed to timely respond, the Knight Institute sued the CDC, demanding it immediately turn over the information.

While most state and local governments are complying with open records laws, there are still a number who have made it more difficult to get information regarding COVID-19.

In one of the more publicized cases, Florida officials denied pressuring attorneys to drop [a] planned public records lawsuit over unreleased coronavirus data. That case was then commenced by another firm and, a week later, Florida Gov. DeSantis released the names of elder care homes with coronavirus cases, which the state’s surgeon general had been refusing to do.

Iowa, on the other hand, is still denying the public access to some [of] its COVID-19 records and information. It appears Virginia is doing the same thing. The Columbia Journalism Review cites a lack of transparency by governments in making available information about tax incentives and money provided under the $2 trillion stimulus package. But such information is vital to help inform the public about such things as where to get a coronavirus test.

In late March, a reporter for the Miami Herald and Tampa Bay Times was barred from the Florida governor’s coronavirus press conference, and in Illinois, the governor’s press secretary announced that only one print pool reporter and one broadcast pool reporter will be allowed to attend the daily COVID-19 press briefings to ensure adherence to “social distancing guidelines.”

In response to these incidents, the RTDNA posted an update “calling on state and local authorities across the United States to be completely transparent with the public about the COVID-19, and to answer questions about it asked by journalists without unreasonable restrictions.”

In one bit of positive news, the U.S. Supreme Court announced “it would hold arguments remotely and, in an unprecedented move, make the live audio of those arguments available to the public.”

Freelance journalists are considered independent contractors and would typically not be eligible for unemployment insurance. Have those eligibility requirements changed under the CARES Act, and what should freelance journalists do to determine if they qualify?

Osterreicher: According to the U.S. Department of Labor, the CARES Act allows states the option of extending unemployment compensation to independent contractors and other workers who are ordinarily ineligible for unemployment benefits.

The DOJ states: “You may be eligible for unemployment benefits, depending on your personal circumstances and how your state chooses to implement the CARES Act. States are permitted to provide Pandemic Unemployment Assistance (PUA) to individuals who are self-employed, seeking part-time employment, or who otherwise would not qualify for regular unemployment compensation. To qualify for PUA benefits, you must not be eligible for regular unemployment benefits and be unemployed, partially unemployed, or unable or unavailable to work because of certain health or economic consequences of the COVID-19 pandemic.” The website also provides a link to contact your state’s unemployment insurance office to learn more about eligibility.

Joined by the NPPA and 18 other organizations, the Authors Guild sent a letter to congressional leaders for help in expanding unemployment benefits for freelance workers.  Lawmakers are also seeking to expand “payroll assistance to struggling local newspapers and broadcast stations that have seen advertising revenue plummet during the coronavirus pandemic.”