Nearly two years after the murder of George Floyd, Mickey Osterreicher traveled to Minneapolis to train members of the Minnesota State Patrol on the First Amendment. Under the terms of the settlement in the case involving Jared Goyette (as described in Chapter 3), the Minnesota State Patrol was barred from arresting or using force against journalists and could not require them to disperse when implementing crowd control measures.

Osterreicher is well qualified for the role. He started his career as a journalist before becoming a lawyer. Today, he is general counsel for the National Press Photographers Association (NPPA) and a reserve deputy in Erie County, New York, where he lives. Osterreicher’s efforts were made easier by the fact that language from the settlement had been incorporated verbatim into the state patrol’s General Order, which meant he was helping troopers comply with their own policy. “You can’t just train in a vacuum,” Osterreicher said.

The training sessions stretched over several months. Some of the participating troopers had been deployed on the streets of Minneapolis after the Floyd murder or in Brooklyn Center following the killing of Daunte Wright. In both instances, troopers had failed to make distinctions between journalists and protesters when using force or making arrests or ordering people to disperse. Now going forward, they would be required to do so. In determining who is a journalist, the settlement directed the police to rely on indicia, including whether the person in question was displaying credentials or wearing clothing marked with press insignia. But Osterreicher explained during the training that journalists were not required to carry a credential or distinguish themselves in any way. He recommended to the troopers that anyone who could reasonably be assumed to be engaged in journalism should be given the benefit of the doubt, or the “presumption of journalism” to use the term coined by Osterreicher. Osterreicher found the troopers receptive. “I got a lot of aggressive questions,” Osterreicher acknowledged. “But I would say from top down, starting with the colonel who led it and got it, they were progressive all the way down.”


Washington, D.C.

Allison C Bailey/Shutterstock

The presumption of journalism is designed to place the legal burden of protecting press freedom on the state. Journalists have a right to do their jobs by covering a protest, including the actions of police. The police, in turn, have an obligation to protect these rights.

Of course, as Osterreicher acknowledged, anyone engaged in criminal activity, journalist or not, is subject to arrest, as the Goyette settlement explicitly noted. Police are not liable if journalists are inadvertently swept up in legal crowd control measures, particularly if they are not easily distinguishable.

Backing up Osterreicher’s approach is the fact that several significant efforts to grapple with the question of who is a journalist during and after the 2020 civil unrest have all arrived at a similar conclusion: When determining who is and who is not a journalist, police should base their assessments on the totality of the circumstances, rather than on the presence or absence of a single indicator like a press credential. The Minnesota settlement in the Goyette case discussed in Chapter 3 supports this approach. So does the settlement reached after a legal battle in Oregon, Index Newspapers v. City of Portland, in which journalists once again alleged that actions by police had compromised their ability to cover street protests.

The Index case was brought by the ACLU Foundation of Oregon, which filed a class action claim in federal district court on June 28, 2020. The suit alleged that members of the Portland Police Bureau (PPB) had systematically assaulted “news reporters, photographers, legal observers, and other neutrals who are documenting the police’s violent response to protests over the murder of George Floyd.” This misconduct, the suit alleged, “offends fundamental constitutional protections and strikes at the core of our democracy.”  


Portland, OR


With downtown Portland the scene of nightly protests, police and journalists had come into regular conflict, according to reporters who were there in the early days of the George Floyd demonstrations. Two weeks before the suit was filed, the PPB announced that only handpicked reporters who were embedded with the police would be allowed to continue working once a dispersal order was given. In their filing, the plaintiffs called that scheme unconstitutional because it allowed the police to pick and choose the reporters they wanted covering them, a strategy the suit alleged was intended “to prevent [the press] from holding the police accountable precisely when accountability is most needed.”

After a legal back and forth, the PPB agreed to abide by a temporary court order that barred them from using force against journalists or arresting them for failure to disperse. Under the terms of the order, police were advised to recognize as journalists all those displaying “visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or distinctive clothing.”

In early July 2020, Trump deployed federal law enforcement officers to Portland. Their ostensible mission was to protect federal property following a mob attack on a federal court building.  But the U.S. Marshals and officers from the Department of Homeland Security actively engaged in crowd control measures on the streets of the city. Beth Nakamura, a photographer for The Oregonian who had been covering the protests since unrest began and had been roughed up by the Portland police, said that the federal officers were even more aggressive and violent and seemed to go out of their way to target journalists covering their activities. “They were like zero fucks,” said Nakamura. “Like thugs.” The presence of federal agents also energized and infuriated the protesters, with nightly clashes growing increasingly violent.   



Portland, OR


In response, the ACLU amended its complaint on July 17, 2020, to add the federal officers as defendants to the suit. Based on the evidence of systematic violations presented, the district court issued a temporary restraining order against the federal defendants, similar to what it had done for the PPB. Fifteen days later, the ACLU claimed that the federal defendants had failed to comply with the order and were continuing to use violent crowd control measures against journalists and legal observers. The federal government disagreed. It claimed that requiring federal law enforcement officers to make distinctions between journalists and protesters was unworkable and would impede their ability to maintain order.  

After considering the written record and legal arguments, U.S. District Judge Michael H. Simon handed down his ruling on August 20. “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press,” Simon wrote in his preamble, citing the U.S. Court of Appeals for the Ninth Circuit’s 2012 decision Leigh v. Salazar. Relying heavily on the expert testimony of Gil Kerlikowske, the former chief of police in Seattle and a former U.S. Customs and Border Protection commissioner, Simon ruled against the Department of Homeland Security and the U.S. Marshals.

Kerlikowske had testified that “trained and experienced law enforcement personnel are able to protect public safety without dispersing journalists and legal observers and can differentiate press from protesters, even in the heat of crowd control.” The logical inference was that if journalists were being repeatedly assaulted and arrested in Portland, it was either the result of a lack of training or deliberate targeting.


Portland, OR


Simon ordered that the federal law enforcement officers operating in Portland must ensure that journalists were not subject to arrest, violence, or dispersal.  His ruling used much of the same language as the temporary restraining order it replaced, but it expanded on directions to the police on how to identify journalists. It advised federal officers not to rely solely on credentials and clothing but also observable behavior, including “standing off to the side of a protest, not engaging in protest activities, and not intermixed with persons engaged in protest activities,” although he noted, “these are not requirements.”

In his ruling, Simon acknowledged evidence presented by the federal defendants showing that some protesters had affixed the word “press” to their clothing and had behaved aggressively toward the police. However, he noted that “[m]uch of this evidence is ambiguous or shows that persons self-identifying as press have intermixed with protesters, have run toward the fence around the federal courthouse and stopped, have not actually been press but merely donned clothing (for one night) marked ‘press’ hoping to avoid violence by federal officers, or simply have stood by while unlawful conduct was engaged in by others. This is not unlawful conduct.”

While expressing concern for the safety of federal officers, Simon noted that they “may arrest anyone, even persons with indicia of press” who engage in unlawful conduct. The fact that some protesters may misrepresent themselves as journalists, Simon determined, could not be a basis for denying the First Amendment rights of the press.

The federal government appealed. On October 9, 2020, the Ninth Circuit upheld the district court’s decision by a 2-1 vote.  



While journalists in Portland sued to protect their rights, many who covered the unrest in the city recognized the real-world challenges that the police faced. Nakamura and her photojournalist colleague at The Oregonian, Dave Killen, described the environment as utterly chaotic. Professional journalists faced ongoing hostility from both the police and protesters, who did not want to be filmed. On the street, Nakamura and Killen mixed with livestreamers and activist journalists who sometimes screamed at the police. At times, protesters dressed entirely in black had “press” labeled on their helmets. Then they got into violent confrontations with police. Nakamura and Killen, along with other colleagues, were deeply concerned by this behavior, which compromised their own safety.  

It is not clear that a better credentialing process and more widespread use of badges would improve the situation. As this report has shown, many journalists attacked by police were wearing visible credentials. As noted earlier, in some circumstances wearing a credential can actually put journalists at risk by increasing the possibility of attack from hostile protesters, which is why no journalist should ever be required to use one. Furthermore, while there may be nothing inherently unconstitutional about police providing credentials, most departments are no longer doing so for a host of legal and practical reasons (as described in Chapter 4).

Still, journalists who wish to obtain credentials should have an easy way to do so. While police departments should get out of the credentialing business, journalist organizations could step up. One option is for organizations that already provide credentials or membership cards, such as the NPPA or the Society of Professional Journalists, to expand their activities, particularly their outreach to freelancers and nontraditional journalists who meet standards of professional conduct. In fact, many members of the press generally favor the use of credentials and recognize that wearing them can assist the police in helping to identify those involved in newsgathering during protests. As Mike Shum put it, “I think we should reach in their direction a little bit,” referring to the police. “I think credentialing is fine.”

Media organizations could also deepen their engagement with police departments across the country to educate them on their credentialing processes and ensure that police see the display of such credentials as an important indicator. Such engagement could also be one strategy for maintaining dialogue with the police.

A more effective and independent credentialing process, managed by media organizations, could also improve the climate for legal advocacy and strategic litigation. In the Index case, Simon repeatedly made clear that he was not extending any special protections to journalists or legal observers, because the city of Portland had already stipulated that they would be exempt from dispersal orders. His legal decision was based on a determination that violent attacks committed against journalists and legal observers were inhibiting the exercise of First Amendment rights guaranteed to all citizens. But in a footnote to his ruling, Simon wrote, “Someday, a court may need to decide whether the First Amendment protects journalists and authorized legal observers, as distinct from the public generally, from having to comply with an otherwise lawful order to disperse from city streets when journalists and legal observers seek to observe, document, and report the conduct of law enforcement personnel; but today is not that day.”

Whether or not a court one day determines that the First Amendment affords special protections for journalists covering protests, police should exempt journalists from dispersal orders and curfews as a matter of policy. It is essential that journalists be permitted to gather and disseminate news in the hours after such orders have taken effect, when the general public is not allowed to observe the actions of police or others who remain on the scene for themselves. In these moments, journalists serve as the eyes of the public, and their documentation may be the only evidence available to validate or refute law enforcement’s claims about what happened at the scene.

The decisions in the Index Newspapers and Goyette cases, as well as California’s S.B. 98 law, offer a practical framework for better protection of press freedom at protests in two respects: First, by reaffirming the broad First Amendment protections enjoyed by anyone engaged in newsgathering activity at a protest, and second, by aiding police in determining who would qualify for an exemption to a dispersal order or curfew. When in doubt, police should assume that a person who appears to be engaged in journalistic activity probably is.


Portland, OR

JPL Designs/Shutterstock

This approach can help police resolve the hard calls and also, as noted earlier, places the burden on them to make an informed determination. Police need to consider the totality of the circumstances. Someone holding up a cellphone at a peaceful rally is exercising their First Amendment right to record, and police have a constitutional obligation not to interfere with that right if the person is not violating any laws. But when a lawful dispersal order is given, and it becomes impractical to exempt everyone recording the scene with a cellphone, a police officer should consider other factors—is the person holding the phone also wearing a credential, or a piece of distinctive clothing, or standing aside, or shouting press? Police acting in good faith will sometimes make errors. But adopting a presumption of journalism raises the probability that police will make the correct call.

Applying the presumption of journalism to the real-life scenarios described in this report damns the actions of police and troopers in Minnesota who carried out attacks on journalists even though they were clearly identifiable. It’s somewhat less helpful in the case of Aaron Cantú and Alexei Wood, but does make it easier to ask the right questions. Should police have made a greater effort to allow journalists trapped inside the kettle, including some who might be working incognito, to identify themselves? Should police have assumed that Wood was in fact a journalist, when while processing him for arrest they observed that, according to Wood’s account, he was carrying several cameras and wearing a homemade press pass? Was the fact that Wood was dressed like the protesters and supporting their demands even relevant?

This is a compromise solution, and probably a messy one, but it is one that recognizes the realities of the current information landscape. Some journalists will worry that it leaves too much discretion in the hands of the police, given their poor record, as described in this report. As Brian Barrett, the assistant general counsel at the Associated Press, pointed out, what still matters most is “what a police officer decides at two in the morning in a heated environment.” Some will worry that relying on indicia of journalism will favor mainstream journalists over citizen newsgatherers, who increasingly serve a vital function. Meanwhile, mainstream journalists will worry that as they become less easily distinguishable from citizens with cellphones, the informal understanding with police that gave them access to newsworthy events will continue to break down. These tensions also permeate current debates about how best to protect the press function in a changed news media landscape. While there is no easy way to resolve these tensions, it is imperative to reaffirm that police have a constitutional duty to protect press freedom and the right to record at protests, to train police to do so, and hold accountable any officers who deliberately target journalists for arrest or attack, or otherwise impede their ability to do their jobs.



The social justice protests that followed the murder of George Floyd were the largest in American history, according to research compiled by The New York Times. As many as 26 million people participated in more than 550 separate gatherings across the United States. The mass demonstrations drew attention to many fault lines in the country’s democratic foundations, including protections for freedom of the press.

Media coverage of protests is integral to the exercise of the full range of rights guaranteed by the First Amendment, including assembly and speech. As the late Congressman John Lewis observed, press coverage is vital for protest movements. It is also a crucial accountability mechanism and a restraint on state power. The waves of arrests and attacks on journalists covering protests in the U.S. in recent years have done significant harm to American democracy. Images broadcast around the world of the police beating journalists undermined U.S. standing and credibility, as Australian journalist Amelia Brace told Congress when she testified in July 2020 following the attack on her crew (as described in Chapter 3).

Given the changes wrought by technology and the fraying of trust in institutions, there are no easy answers. But the legal settlement in the Goyette case, the new law in California, and the ruling of the Ninth Circuit in the Index case all make clear that the police should treat people as journalists when, all things considered, they appear to be journalists. Where there is doubt, they should presume the person is engaged in journalism. This approach recognizes the obligation of law enforcement to protect journalists and press freedom and to make sure journalists are present and able to carry out their responsibilities whenever the right to assembly is restricted. Other legal settlements and consent decrees in a number of cities, including Omaha, Newark, and Baltimore, impose constraints on the use of force or compel First Amendment training for police.

Accountability is also critical, both in the form of improved oversight of police conduct at demonstrations and through civil litigation by journalists to defend their First Amendment rights. Since the 2020 protests, there have been at least 50 civil cases brought by journalists, according to the U.S. Press Freedom Tracker. Several of them were filed by journalists featured in this report, including Aaron Cantú and Alexei Wood in Washington, D.C., and Carolyn Cole and her colleague in Minneapolis. Cantú and Wood recently reached a settlement, but Cole’s case was ongoing at the time of publication.

Meanwhile, the Justice Department is examining the treatment of journalists as part of a pattern-or-practice investigation focused on police departments in three cities: Minneapolis, Louisville, and Phoenix. Pattern-or-practice investigations are carried out by the Civil Rights division and seek to determine whether police are engaged in unconstitutional or unlawful behavior. They often result in a settlement or consent decree.

The Justice Department announced their findings in the Louisville investigation in March 2023, including a finding that the Louisville Metro Police Department “[v]iolates the rights of people engaged in protected free speech critical of policing.” On June 16, 2023, the Justice Department issued its report on the Minneapolis Police Department (MPD). The report includes a blistering eight-page section detailing violations of the First Amendment rights of protesters, the media, and others exercising the right to record. Among its findings, the Justice Department noted that “MPD officers regularly retaliate against people for their speech or presence at protests particularly when they criticize police. This retaliation frequently manifests as force. … MPD officers frequently use indiscriminate force, failing to distinguish between peaceful protesters and those committing crimes. … MPD officers regularly retaliate against members of the press particularly by using force. … MPD officers interfere with individuals’ right to record police activity by arresting them, destroying their recording equipment, and retaliating with force. … MPD’s policies and training still fail to clarify basic First Amendment requirements, including details about the scope of First Amendment protections and how to handle media at protests.”

The report also notes several instances in which officers lied to the public, lies that were only discovered upon review of body-worn camera footage or the recordings of bystanders. One such lie concerned the murder of George Floyd. As the Justice Department notes:

The day after George Floyd was murdered, MPD issued a press release about it. The press release, entitled “Man Dies After Medical Incident During Police Interaction,” stated that officers had handcuffed the man and noted he appeared to be suffering medical distress. Because a 17-year-old girl filmed that day, the nation learned what really happened.

These findings underscore the gravity of the situation and the urgent need for reform. In order to genuinely change the dynamic between press and police at demonstrations, the presumption of journalism approach should become a norm that police voluntarily embrace. Yes, there may be mistakes and also deliberate attempts to falsely claim to be a journalist. But police should be trained to understand what is at stake for American democracy. Officers who deliberately or through negligence violate the rights of journalists to cover public protests should be held accountable, because if those rights are not affirmed and protected by law enforcement, other First Amendment rights are vulnerable.

While mass protests are episodic, journalists have consistently faced obstacles while covering them. This is the moment to tackle the historic challenge. America remains polarized, and broader policing issues are a source of deep controversy. The next wave of mass protests could be just around the corner. So could America’s next press freedom crisis.


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