Arresting Journalism

Chances are, if you asked 100 journalists about the occupational hazards of their field, 99 of them wouldn’t mention prison time. Crappy hours? Sure. Even crappier diet? Probably. But you’d be hard-pressed to find a journalist who has legal counsel as one of their complaints. Maybe that should change, though. The idea of chasing down a story – at whatever the cost – is nothing new, and it’s the ramifications of that ambition (or foolishness; the two toe a similar line) that can leave journalists behind bars with no earthly idea of what to do next. It’s a situation that Jonathan Peters, an attorney, journalism professor and press freedom correspondent for the Columbia Journalism Review, specializes in. When asked about the important things to know about being arrested while on assignment, Peters stressed the importance of preparation.

“It’s important for a journalist to carry credentials when in the field and to identify himself or herself clearly as a journalist when interacting with law-enforcement officers,” he said. “It’s also important to carry a government-issued photo ID, which can be used to speed up release if the journalist is detained or arrested. And if arrested, the journalist should ask to speak to his or her lawyer and demand that all questioning stop until the lawyer is present.”

Journalists love the adage that the pen is than the sword. While that could certainly be true, it’s 2017 and that expression could use a refresher. In a marketplace that continues to shift away from traditional platforms, it might be the cell phone that’s mightier than either the pen or the sword. Journalists’ phones are their best friends and often their most useful ally, so protecting them is a must for anyone on assignment.

“It’s also useful to remember that even though the police may not generally, without a warrant, search the contents of a cell phone seized from an arrested person, you should think carefully about what is on your phone and delete or otherwise remove any sensitive data—before going into the field,” Peters said. “And use a password to protect your phone’s contents, and be mindful of your phone’s location while in the field.  If the police ask for or even demand the password, refuse and request your lawyer.”

If you’re a journalist having legal issues, it’s probably safe to say you’re also dealing with first amendment issues. The first amendment is equally powerful and misunderstood, so having a robust knowledge of what the amendment means can be a powerful weapon.

“The biggest misconception [regarding the first amendment] is probably that journalists have special information-gathering rights under the First Amendment.  For the most part, they don’t — they simply share with members of the public the right to be in a public forum (like a park or sidewalk) and gather information there, including the right to film or photograph public spaces and events, such as police activity at protests,” Peters added. And while the first amendment protects many of your rights, it doesn’t protect them all.

“Another major misconception is that the First Amendment immunizes you from liability if you commit crimes or create civil liability while gathering information,” Peters said. “Journalists are not allowed to trespass, for example, or commit crimes to gather information, and if they do, the First Amendment will not protect them.”

There have been few more divisive times to be a journalist than under the current presidential administration. Bedrock institutions are being readily discredited, making the work they do both significantly tougher and more important. It’s a dynamic that Peters worries about every day. “At the macroscopic level, I’m worried that Trump’s ceaseless condemnation of the press — and framing of the press as the enemy of the American people — could create or feed an environment in which press restrictions are seen as acceptable or even desirable, eroding the legal and cultural independence the press needs to play its democratic role.”


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