Whatever happens with police reform legislation in Congress, there is no reason to expect that protection of reporters and media will figure into the proposed “best practices” of how journalists should be treated during tense and often violent situations such as we’ve seen in the past month. Generalized protections already exist in the First Amendment, but as the brutal incidents of the past month show, law enforcement officers can recklessly bypass those enshrined barriers.
A slew of reports – some of them admittedly self-pitying – emerged in recent weeks with frightening details about how print and electronic journalists have been attacked by law enforcement officers. It appears that sometimes reporters were singled out as they sought to cover the protests and demonstrations that erupted around the world after George Floyd’s death-by-knee in Minneapolis.
So far there has been almost no official local government response to the actions of local police in roughing up journalists who were doing their jobs. To prepare this analysis, I sought comments from several police and municipal organizations but received no responses to repeated requests over the course of several weeks.
According to the U.S. Press Freedom Tracker1 (a joint project of the Committee to Protect Journalists, the Freedom of the Press Foundation, and other free-press organizations), during the weeks after the George Floyd “incident” in Minneapolis – which triggered protests and some civil disturbances worldwide – journalists in U.S. cities encountered, among other confrontations:
- 112 physical attacks (67 by law enforcement officers);
- More than 64 arrests, some seen on live video coverage;
- 68 tear gassings;
- 33 pepper sprayings;
- 104 rubber-bullet or projectile strikes; and
- 67 incidents of equipment or newsroom damage.
CPJ estimates there were a total of nearly 500 incidents in U.S. cities during the past month involving police attacks on reporters. The on-screen arrests of TV reporters such as CNN’s Omar Jimenez in Minneapolis and KPIX-5 News reporter Katie Nielsen in Oakland, Calif. (to name just two such incidents) plus the devastating injuries to photographers – notably freelance photojournalist Linda Tirado, who lost vision after being hit in the eye by an expanding foam bullet early in the Minneapolis street demonstrations – became the focus of the first wave of critiques.
There is the shocking mashup of a video showing an Australian TV cameraman being roughed up by uniformed lawmen in Lafayette Square on June 1 as authorities cleared away demonstrators near the White House; that video has been spliced into the Australian coverage, which shows a panicked scene of the reporter, microphone in hand, describing the scene. That breaks up to a wild shot as the lens points skyward then down to the ground as the punched cameraman tries to regain his position and aim the lens again at the running reporter.2
Reports of police searching and seizing broadcast and other media equipment as well as damages to media property and attacks and arrests of journalists have surfaced in more than 60 cities, from New York to Los Angeles, from Pittsburgh and Louisville to Little Rock, from Miami to Seattle and, of course, in Minneapolis. The CPJ roster and other recollections cite situations, such as a group of about two dozen journalists (some wearing “Media” garb) who stood apart from the protesters. Nonetheless, police attacked the scrum with pepper spray and rubber bullets.
Finding Reasons
Inevitably, reporters’ rights will be wrapped into a play of words, mostly ambiguous. After all, “protests” and “demonstrations” can be constitutionally protected “peaceable assemblies,” but “riots” are illegal. But who determines when a peaceable protest becomes a riot? Will the famous decision “I know it when I see it” be applied to civil unrest as it was to obscenity in the Supreme Court 56 years ago?3
Endless conjecture – some of which will work its way into the negotiations for future police/media relations – has surfaced in the tsunami of rhetoric during the past month. Reasons advanced for the current antagonism include:
- President Trump’s frequent anti-media rhetoric, considered by some as permission or even encouragement to both law enforcement officers and angry protesters.
- The growing presence of bloggers and other self-proclaimed reporters, sometimes on the scene for a cause, rather than the historic, objective coverage of established media.
- The diminished presence of local newspapers and radio/TV shoe-leather “beat coverage” of local events, so that the reporters – even badged or tagged “Press” – are unfamiliar to local police commanders let alone other police personnel on the scene.
- Freelance writers and photographers/videographers and the role of the “gig economy.” Even if they are on assignment for established media, the temporary workers may be perceived as less professional than salaried staffers.
- Phone cameras and other digital tools that have made almost every onlooker a potential “reporter.” Police are well aware that the amateur videos made by passers-by and uploaded to media outlets have become a major factor in many stories – thus further blurring the role of professional journalists in covering the constantly “breaking news.”
- Police response to the antagonistic coverage that they often do receive in local media, such as reports about officer malfeasance, budget and labor improprieties, and other activities. “We can’t get a fair shake,” some officers complain about overall media coverage.
“Journalists are not there to disrupt,” says Dan Shelley, executive director and chief operating officer of the Radio Television Digital News Association (RTDNA). “They are there as witnesses to collect the facts and report them out broadly…. the same public on whose behalf the law enforcement officers are acting.”
Shelley, a former WCBS-TV executive producer as well as director of digital services, told me that RTDNA groups have been trying to develop “correct verbiage to use in news stories” to understand how to be respectful of law enforcement officers.4
“No journalist goes out in the field planning to get arrested,” Shelley says, admitting that sometimes reporters are “just in the wrong place at the wrong time.”
Of course, it could be argued that journalists are in the RIGHT place, doing their jobs, while law enforcement officers are focused on doing their own jobs, which may be calming or breaking up a crowd without paying attention to details about who’s who.
Shelley points out that “taking to the streets is as American as the First Amendment” to express passion on any issue. But he admits “things get trickier when peaceful protest is accompanied or replaced by violent disturbance,” especially when situations “spin quickly out of control for participants, for police, and for journalists.”
RTDNA’s “Guidelines on Civil Unrest” warns reporters not to use words like “protest” and “riot” (or “protester” and “rioter”) interchangeably.
“Protest can be legal or not, while rioting is by definition a crime,” Shelley told me. “When violence breaks out at what was a peaceful protest, the people involved may or may not be the same ones.”
Which brings us back to the fundamental question of how police can identify individuals among the masses in a teeming crowd.
“It’s a sad reality that there is no uniform First Amendment-compliant policy nationwide that all law enforcement officers follow [when] they respond to journalists who are covering social or civil unrest,” RTDNA’s Shelley told me. “There is not a standard policy on how police should handle relations with communities or with journalists.”
Shelley anecdotally corroborates the CPJ study showing that journalists have been violently targeted for arrests and assaults, “overwhelmingly by police officers rather than protesters.”
“The last few weeks have shown that despite constitutional protections, and laws that exist, there have been unjustifiable, wanton attacks on journalists and others for exercising First Amendment rights.”
Shelley acknowledged that despite attempts to avoid confrontations by putting words such as “Press” or “Media” on headgear or clothing, such labels “often make no difference to police” and may actually flag the journalists as “targets for media-haters in the crowd.” He also cited problems that arise when rabble-rousers don a “Press” vest or hat in hopes of avoiding rough treatment, and that police have become suspicious of such characters – and thus feel entitled to take aim at anyone wearing a press credential.
“How can we tell the difference,” he wonders, between legitimate journalists and troublemakers hiding behind the First Amendment? But he contends that even in tense situations, “officers should make the presumption” that a person is a journalist if he or she identifies as such.
“As journalists we don’t want poseurs out there who claim they are journalists [including freelancers] if they are not,” he says.
Accreditation Won’t Necessarily Help
Admittedly, identifying legitimate journalists is an ongoing dilemma when anyone with a phone camera or a blog can self-declare himself or herself a reporter. At a Zoom video conference organized by the International Center for Journalism5 in early June, reporter Branden Hunter of the Detroit Free Press explained – as have many others – that merely being a “young black male” made him a police target, even though he was wearing a media pass given to him by the Detroit Police Department.
“They ignored it,” Hunter recounted.
Indeed, the issue of accreditation is a constant conundrum. In Detroit, like New York City and a handful of other jurisdictions, the police issue a “Press Pass,” although it’s often a controversial process. Big media companies also distribute photo identification badges/cards – but those are easily obscured in the heat of confrontations. Several publications ran images of press badges worn on cords around reporters’ necks during the melees. The badges were shattered and broken.
Only a few major metropolitan law enforcement agencies issue press credentials for local reporters, notably the New York City Police Department. Accredited reporters must wear a visible badge, but there have been incidents in recent years where badged journalists have been attacked by police. Moreover, a police commander can revoke the credentials on the spot with no right of appeal.
The Media Institute was among 115 media organizations that co-signed a letter from the Reporters Committee for Freedom of the Press to Minnesota officials6 last month, urging them to take “immediate, concrete steps to end the series of police arrests and attacks on credentialed and clearly identifiable journalists” during protests in Minneapolis and other cities. The letter emphasized that in every case, “there are strong indications that officers knew the journalist was a member of the press.”
“Police have arrested, detained, and threatened journalists, and have physically assaulted them with rubber bullets, pepper spray, tear gas, batons, and fists,” the letter continued, emphasizing that the “right of the media to report on police activity is foundational to our democracy.”
In a separate letter to the mayor and police commissioner in Minneapolis, Reuters warned that, “Unless journalists can safely report the news, First Amendment freedoms are meaningless.”
Beyond ‘Best Practices’ as Envisioned by Congress
The two primary congressional legislative responses to the current malaise look at police actions and seek to establish an array of policies, from reducing sale of excess military gear to local police to establishing personnel employment guidelines. Both the Republicans’ S. 3985, the “Just and Unifying Solutions To Invigorate Communities Everywhere (JUSTICE) Act,” and the Democrats’ H.R. 7120, the “George Floyd Justice in Policing Act of 2020,” include “best practices” sections as well as directives for studies to review police actions locally.
One part of the House legislation, its “Police Exercising Absolute Care With Everyone (PEACE) Act,” makes no mention of the protected role of the media in its current form. Sections of this bill recommend “deescalation tactics and techniques” that could apply to treatment of journalists, although the current form is focused on tactical techniques to create “distance between the officer and the threat,” ostensibly demonstrators.
Journalists, it is hoped, should not be considered a threat to the community.
Although journalists may not seek to put themselves in harm’s way, sometimes the dividing line is narrow. Reporters who walk alongside protesters at a large event get swept into what becomes riotous behavior.
“We want our police officers to know and appreciate the media’s role, even during protests,” said Don Aaron, the Nashville Police Department’s public information officer and a veteran reporter at a local TV station. Aaron told me that after a recent incident in Nashville, the police department sought to “make sure that all officers know that media representatives were exempt from a curfew on downtown streets.” The curfew was imposed after rocks and bottles were thrown at officers and the city’s historic courthouse was attacked. He told me that the media members asked permission to cover events after curfew hours and, he said, “We’ve continued to let officers know that media representatives are allowed to be there to complete their missions as reporters.”
Aaron acknowledged the challenges of recognizing “new media” reporters, which may be difficult to parse out during tense situations.
Constitutional Training and Mixed Signals
Knowledge of the First Amendment with its guarantees for press freedom and peaceable assembly may be glossed over during policy training. Although most local law enforcement officers take an oath to support the U.S. Constitution as well as state constitutions, their actual media training may be condensed into two hours of police academy training, according to sources I interviewed. Supervisors get additional training as they work their way up the ranks, but those constitutional values may lapse in the heat of a confrontation.
Police sources admit that the training hits “some high points sometimes,” but that there are very few specifics about how to uphold constitutional values – both federal and state constitutions.
The current police/media brouhaha comes as we’re living through an era of “copaganda” when police officers are both extolled and vilified on entertainment programming. Television crime procedurals such as the “Law and Order” and “NCIS” series have perpetuated public perceptions of responsible police work, continuing the process that dates back to “Dragnet,” “Highway Patrol,” and “Hill Street Blues.”
However, reality shows such as “COPS” and “P.D. Live” (now both canceled in the past month) have confused casual viewers and law officers about what’s real. Add to that the problem sociologists identified decades ago: Some viewers cannot distinguish between the police fiction of prime time versus the local news “cops beat” stories on late-night newscasts.
On top of that, researchers explain that the “true stories” and dramatic misconceptions have affected both public and police professionals’ opinions of the media. The police/media relationship is truly multi-dimensional.
Looking Back: Reporting From ‘Somewhere in Custody’
Although many people – especially protective media organization leaders – contend that the police/media relationship is “the worst I’ve ever seen” (or some variation on that wording), the contentious nature has long been obvious – notably in high-visibility confrontations between television reporters and law enforcers during the broadcast TV era.
The fracas has been “part of the job,” perhaps most memorably at the national political conventions in the Vietnam era.
At the extremely contentious 1968 Democratic convention in Chicago, young CBS reporter Dan Rather was knocked to the floor and gut-punched by a private security officer as he was interviewing a Georgia delegate. When he escaped from the scrum, Rather waved off the incident as “it’s all in a day’s work.”7
In a similar vein, NBC News reporter John Chancellor uttered the famous signoff, “This is John Chancellor, somewhere in custody” as he was arrested at the 1964 Republican National Convention in the Cow Palace at Daly City near San Francisco. The future anchor said he was arrested for refusing to give up his spot on the floor to “Goldwater Girls,” but RNC officials said he was blocking an aisle while conducting interviews.8
Those political smackdowns look tame – even quaint – compared to the current brutality. Today’s law enforcement practices – especially in this unruly, shifting, and highly politicized media landscape – require broad changes to support the First Amendment and give citizens the news coverage they deserve. That’s more than police reform legislation can do.
It will take a significant process for most police on the street to appreciate that real reporters are trying to tell a story – and shouldn’t be bashed for doing so.
Gary Arlen, president of Arlen Communications LLC in Bethesda, Md., has covered the convergence of the media, telecom, and technology industries in Washington for nearly 50 years. He has edited and published reports about “new media” policies and has provided analysis and consulting services to nonprofit groups and to corporations, large and small. Mr. Arlen covered “cops” and local news in his first job at Big WAYS radio (Charlotte, N.C.) and in previous broadcast internships while a student at Washington University in St. Louis and Northwestern University’s Medill School of Journalism.
1 https://pressfreedomtracker.us/george-floyd-protests/.
2 https://www.youtube.com/watch?v=KV4dBYzBAfg.
3 In the 1964 Supreme Court decision in Jacobellis v. Ohio, 378 U.S. 184, which dealt with an allegedly obscene movie, Justice Potter Stewart’s concurrence included a subjective definition of hard-core pornography. The first clause is well remembered, but the second part is often overlooked: “I know it when I see it, and the motion picture involved in this case is not that.”
4 https://www.rtdna.org/content/guidelines_for_journalist_arrests.
5 https://www.icfj.org/news/journalists-under-attack-lessons-field.
6 https://www.rcfp.org/briefs-comments/minnesota-protest-attacks-letter/.
7 https://www.cbsnews.com/video/1968-cbs-news-dan-rather-gets-roughed-up-while-trying-to-interview-a-georgia-delegate/#x.
8 https://www.cnbc.com/video/2008/08/22/chancellor-rnc-1964.html.