Not long ago, journalists covering protests stood apart—literally. They were easily differentiated from protesters because they tended to carry large and highly visible equipment; to wear press passes, in many cases issued by the police; to use distinctive clothing, such as vests emblazoned with their media affiliation; and to position themselves at a distance from the demonstrators, particularly when they clashed with police. In many communities, the police personally knew the local journalists who regularly covered them.


But technology has transformed the way most reporters work, and professional norms have changed as well. There has always been a wide range of journalism practiced in the United States—including tabloid journalism, opinion journalism, and journalism linked to political causes. But many mainstream outlets, including most daily newspapers, embraced the concept of “objectivity,” which was widely understood to be a good faith effort to determine the truth. However, some journalists have challenged that understanding, arguing that objectivity is illusory and that in a moment of democratic crisis, journalists should not present every issue as a “both sides” story in which each perspective is given equal weight and legitimacy. Today, some journalists cover protests from a distinctly activist perspective, intermingling with the demonstrators and explicitly supporting their demands.

 

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Spencer Platt/Getty Images

In some instances, journalists choose to work incognito, either to gain access to perspectives not otherwise available or for safety reasons, because they fear the protesters might be hostile to their work. The widespread adoption of smartphones makes it possible for nonjournalists to easily engage in activity like recording and photographing, and social media platforms offer an audience for the dissemination of their documentation.


Law and practice do not seem to have kept pace with this new and complex reality. For example, do journalists who operate in a less conventional manner lose any of the rights and protections customarily afforded to the press? This issue emerged in dramatic fashion on the very first day of the Trump administration when police in Washington, D.C., used aggressive crowd control measures against demonstrators protesting the new president’s assumption of office. At least nine journalists were arrested that day. Three were charged with serious crimes.


Inauguration Day, January 20, 2017, was cold and dreary. A large crowd supporting the incoming president poured onto the National Mall to watch him take the oath of office. A smaller group assembled nearby to repudiate the new administration. They marched under the banner (or more accurately the hashtag) #DisruptJ20, representing a coalition of citizens and activists, including anti-capitalist and anti-fascist groups aiming to block the peaceful transition of power. Dozens of journalists were there to cover the expected confrontations as well as the police response.

 

 

 

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JEWEL SAMAD/AFP via Getty Images

The crowd of about 1,000 demonstrators assembled at Logan Circle. They headed south on 13th Street NW towards the White House. A few minutes into the march, small groups of protesters, dressed in black with their faces covered, began hurling stones, smashing windows, and overturning garbage cans. More serious incidents were reported. The window of a police van was smashed with a brick. A black town car outside the headquarters of The Washington Post on K Street NW was set ablaze, sending billows of smoke into the air.


A phalanx of D.C. Metropolitan Police in riot gear lined the route. Metropolitan Police Commander Keith DeVille declared the gathering a riot, although police never ordered the crowd to disperse, according to court documents. Police deployed sting balls and pepper spray, an excruciating irritant, as well as crowd control measures intended to force the protesters into a confined area on 12th and L Streets NW in a policing tactic known as “kettling.”


“I wasn’t differentiating [between] who was demonstrating and who was rioting,” Commander DeVille later testified. More than 200 people were arrested as part of the operation.

 

 

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Michael Candelori/Shutterstock

One of them was Aaron Cantú, a journalist who at the time specialized in coverage of activist communities. While Cantú did not have an assignment that day, he did have a job as a journalist. He was a senior editor at The New Inquiry, an online, not-for-profit, New York-based journal of intellectual thought. Cantú had experience covering demonstrations, including at the Republican National Convention in Cleveland in July 2016. He had learned that protesters could at times be hostile to the presence of journalists. Once he was threatened by protesters who had objected to having their photo taken. In covering the DisruptJ20 rally, Cantú decided the best way to stay safe and carry out the kind of colorful fly-on-the-wall reporting that was his specialty was to blend in as much as possible. He wore dark clothing and carried pen and paper but no press credential.


Trapped inside the kettle, Cantú recognized that the measures he had taken to keep himself safe from hostile protesters were going to make his situation more difficult with the police. He assumed he could approach the police line and explain he was reporting on the rally. But when he initially tried to engage with police, he was hit with pepper spray in his eyes and temporarily blinded. When Cantú was later able to inform a police officer that he was a journalist, he was told to “wait it out.” Cantú was frustrated but assumed he would at most be charged with some minor offense and released.


Also arrested inside the kettle was photographer Alexei Wood. Wood, unlike Cantú, was visibly engaged in newsgathering. He was carrying photographic equipment and livestreaming events as they unfolded. In fact, Wood’s 42-minute video is perhaps the best available visual record of the DisruptJ20 protests. But Wood’s narration of the events he witnessed was hardly dispassionate. As a self-described anarchist journalist, Wood explicitly supported the protesters and cheered their destruction of property. Wood expressed his excitement as demonstrators dragged garbage cans and newspaper racks into the street, smashed the windows of a Starbucks and a Bank of America, and scrawled graffiti on metal grates. He mocked members of the National Guard struggling to put on gas masks. He later described himself as “blissed out” by the energy of the protests.


Whatever bliss he was experiencing ended once he was trapped in the kettle. Wood filmed a group of demonstrators charging the police line. He filmed police deploying flash-bang grenades, pepper spray, and tear gas inside the kettle. As the video ended, Wood was on the ground, suffering the effects. “This is some of the worst pain I’ve ever been in in my life, and it won’t go away,” Wood said.

 

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Alexei Wood/Vimeo

Wood’s video also captured the way other journalists were treated by the police. At one point, two reporters, clearly identifiable in protective gear, appeared to flash their press credentials and were allowed to exit the kettle. Wood, dressed in black and wearing a bicycle helmet, was carrying a homemade press pass, although it’s not visible in the video.


While many journalists from a variety of news organizations covered the DisruptJ20 protest, all nine arrested that day were freelancers or worked for lesser-known outlets. Wood said that he was one of the first to be extracted from the kettle and processed, and he believes he was singled out. In reference to the cheering in his video narration, Wood acknowledged, “I was loving it. I think the reason I got so much heat was because I wasn’t like, ‘Oh no, property destruction.’ I’m like, dude, this makes sense.” But it was commentary, not action. “Obviously, I didn’t do anything,” Wood continued. “I didn’t partake in any criminal behavior.”


Prosecutors took a different view. They indicted over 200 defendants after the mass arrest, including Wood and Cantú, charging them with serious felonies including rioting, destruction of property, and incitement. If Wood were to be convicted on all his counts, he could face more than 60 years in prison.

 

 

Wood went on trial in D.C. Superior Court on November 17, 2017. He was among the first group of six defendants to face trial for their alleged role in the DisruptJ20 protests. In her opening statements, Assistant U.S. Attorney Jennifer Kerkhoff acknowledged that the government did not have evidence that the defendants personally engaged in property destruction. Instead, she argued, those on trial participated in a broad criminal conspiracy to riot. “Each of them made a choice, and each of them played a role,” Kerkhoff said. “You don’t personally have to be the one who breaks the window to be guilty of rioting.” About Wood in particular, prosecutors specifically argued that his running commentary in support of the protesters not only disqualified him as a journalist but was tantamount to incitement to violence, one of the most serious charges against him.


Wood’s defense attorney, Brett E. Cohen, called his client’s prosecution a grave threat to press freedom, and leading organizations agreed. Both the Reporters Committee for Freedom of the Press and the Committee to Protect Journalists (where this report’s author previously worked as executive director) called Wood’s prosecution excessive and a danger to press freedom. The fundamental concern was that prosecutors failed to exercise discretion in charging and prosecuting Wood despite his newsgathering role and the lack of any evidence to suggest he had taken part in unlawful activity. An additional concern was the use of Wood’s video as a central piece of evidence not only against the initial six defendants, but potentially against the many others the government intended to bring to trial.


The judge in the case, Lynn Leibovitz, expressed no view on whether Wood was a journalist. But on December 13, she had an extended exchange with Kerkhoff regarding the charges that had been lodged against Wood. She acknowledged that Wood had cheered the property destruction that he witnessed. But she noted that Wood’s enthusiasm absent “directive conduct” could not be construed as incitement. She dismissed the incitement charge against him.


On December 21, five weeks after the trial began, the jury rendered its verdict: Wood was not guilty on all remaining counts. The five other defendants on trial with him were also acquitted. Soon after, the government dropped charges for all other defendants, including Cantú. (Charges against another journalist, photographer Shay Horse, had been dropped before Wood went on trial). In fact, none of the more than 200 people arrested inside the kettle on January 20 was ever convicted of a crime, although a handful pleaded guilty to some charges. Two judges also ruled that Kerkhoff had “withheld key evidence from defense attorneys.” Ultimately, the city of D.C. agreed to pay $1.6 million after two lawsuits were brought by those who had been arrested. As part of the settlement, the city also agreed to change its mass arrest protocols and to remind officers of First Amendment rights at protests.

 

 

 

 

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JEWEL SAMAD/AFP via Getty Images

While Wood was exonerated, he acknowledged the complications that can result from his dual identity. “Am I an anarchist or a journalist?” Wood asked. “I don’t necessarily differentiate my roles. And the First Amendment protects both. So, it doesn’t fucking matter.” In fact, Wood said his experience at trial made him question his role as a journalist because the footage he shot could have contributed to “people doing time.” He has no plans to film demonstrations in the future and has come to believe that because of the way that law enforcement uses video footage to identify and prosecute demonstrators, protesters who swat phones out of the hands of journalists are justified. “I think liberation is more important than getting the shot,” Wood said. “The media doesn’t have this unambiguous right.”


After the trial, Wood and Cantú teamed up to file a civil claim against the city of D.C. and the Metropolitan Police Department for violating their constitutional rights . “I beat the charges, but you can’t beat the ride,” Wood said, referencing his trip to jail. Wood learned at discovery several months after his arrest that police who had seized his phone had accessed his personal information, including his Gmail account. Wood’s photographic equipment was also seized and held for more than a year. “This is part of the repression, right?” Wood said. “The intimidation, the surveillance that I saw documented in the trial, my phone getting broken into.”


Like Wood, Cantú was traumatized by his experience. It was not only the zip ties that were applied so tightly that his hands went numb, or the lack of access to food or a bathroom during the more than eight hours he was held in the kettle. It was also the efforts to gain access to his phone and other electronic communication, which made him feel paranoid and isolated. “The nature of journalism has changed, and the law does not appear to have kept up,” Cantú said. “In these dangerous situations, law enforcement is deciding who is or who is not a journalist.”


These events could have played out differently. Police could have opted not to use kettling, an indiscriminate tactic that detains everyone in a geographical area, instead attempting to single out for arrest those who were violating the law. Police might have made a greater effort to ascertain if journalists were accidentally caught up in the kettle and to release them if their role could be confirmed. Prosecutors could have made a decision not to charge them, based on the fact that they were acting as journalists and engaged in newsgathering activities. They could have recognized that Wood’s commentary, while disagreeable to some, was just that—commentary—and that journalists comment on events they are observing all the time as part of their role. The murkiness of the situation and the lack of introspection on the part of the police and prosecutors left the issue unresolved, until it resurfaced in a profound way following the May 2020 murder of George Floyd.

 


First Amendment Rights of Protesters and the Press

The First Amendment’s protections are implicated at public protests in multiple ways. The First Amendment protects the freedom of speech, the freedom of the press, and the right to peaceful public assembly. The Supreme Court has recognized that implicit in these freedoms are other ones, such as the right to access certain information about the activities of government officials. As the Court has stated, “many governmental processes operate best under public scrutiny.” The Court has also held that the First Amendment “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”  

The Court has defined “the press” broadly, as “every sort of publication which affords a vehicle of information and opinion.” It has also recognized First Amendment protection for the act of newsgathering as a necessary component of freedom of the press, stating in Branzburg v. Hayes that “without some protection for seeking out the news, freedom of the press could be eviscerated,” and in Houchins v. KQED, Inc. that “there is an undoubted right to gather news ‘from any source by means within the law.’”

In general, the right to engage in protest and the right to document events at a public protest are all encompassed by the First Amendment’s protection for free speech. Courts have so far declined to recognize special or additional rights for journalists. However, members of the press are often exempted from executive orders imposing a curfew during a protest, or from police orders to disperse.

Right to record

The First Amendment protects an individual’s right to record police activity in public spaces, subject to reasonable time, place, and manner restrictions. Eight circuit courts have explicitly affirmed this right, grounding their decisions in the First Amendment’s protections for “the right to receive information and ideas,” “the dissemination of information relating to alleged governmental misconduct,” and promoting “the free discussion of governmental affairs.”

Everyone, not only the professional media, has the right to record. Appellate courts have specifically recognized the important role that bystanders who are recording or photographing police activity can play. In Glik v. Cunniffe, the First Circuit said,

The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. … Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cellphone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

The Third Circuit, in Fields v. City of Philadelphia, remarked “we are now in an age where the public can record our public officials’ conduct and easily distribute that recording widely. This increase in the observation, recording, and sharing of police activity has contributed greatly to our national discussion of proper policing.” Fields also outlined the complementary relationship between professional media work and bystander recordings, noting “private recordings have improved professional reporting, as ‘video content generated by witnesses and bystanders has become a common component of news programming.’”  

In addition, the Fifth Circuit, in Turner v. Driver, noted that bystander recordings of police can sometimes be useful to law enforcement:

Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

Importantly, appellate courts have made clear that the First Amendment’s protections in this context apply even if the individual making the recording or taking the photograph is not intentionally engaged in newsgathering at the time. In Fields, the Third Circuit rejected the argument that these protections only apply if the individual has “an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity.” To the contrary:

This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material. There is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them.  

The Fifth and Seventh Circuits have concurred, stating respectively that “the First Amendment protects the act of making film,” and “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”

Thus, the right to record police activity in public is firmly established, provided that those recording are not otherwise obstructing or interfering with police activity. This right is enjoyed by all members of the public, and extends to anyone who is recording or photographing, whether or not they intend to distribute their recording more broadly at the moment of creating it.

Retaliation against individuals exercising First Amendment rights

The First Amendment prohibits government officials, including police officers, from retaliating against individuals because they are exercising their expressive rights.

The Supreme Court has stated that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” and that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”  The First Circuit has further noted that “[t]he same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”

 

– Katy Glenn Bass

 

 

Ch 2: From Little Rock to Ferguson →