Know Your First Amendment Rights Before the Assignment

1st Amendment Protects a Lot – But Not Everything
NYU professor Stephen Solomon advises journalists on how to avoid arrest while covering protests, ICE raids and police activity.
by Kevin Johnson, National Press Foundation

Whether it is a citizens’ protest, immigration raid or police action in public spaces, the First Amendment offers strong protections for journalists’ access to potential news events.

But there are some exceptions that reporters, photographers and videographers should understand before they hit the street.

In a wide-ranging discussion focusing on press protections, Stephen Solomon, who teaches First Amendment law at New York University, told the National Press Foundation’s “Federal Action, Local Impact” Fellowship that reporters enjoy long-established rights recognized by eight federal appeals courts to gather information and record unfolding events in public forums.

Yet the difference between getting the story or leaving the scene in handcuffs, especially at a time of increasing clashes between law enforcement officers and reporters, often depends on knowing when authorities can restrict that access:

When journalists’ presence amounts to interference
“The police and any kind of emergency responders have to be able to do their job. They have a legitimate job to do. And so a journalist or a bystander who’s making a video or writing notes and stuff can’t get in their way. That goes to … spacing, what’s reasonable in terms of spacing,” Solomon said. “If you go right up to the police officer and put the phone like a foot away, I think the police would, in many cases … could legitimately say, you need to move, not banning you from collecting information, but you’re too close. So the spacing is part of time, place, and manner, the manner in which you’re doing it.”

Law enforcement also may impose limits if news gathering blocks or disrupts vehicle traffic, especially the movement of patrol cars, firefighting vehicles and ambulances.

“Blocking traffic is a very serious concern,” Solomon said.

Even in public spaces, there are some rights to privacy
“A question to ask: Is what’s going on discernible with your eyes and your ears without the use of enhancing equipment, like a long telephoto lens or some kind of a sound equipment that where nobody could hear something, but you’ve got sound equipment. It goes to the reasonable expectation of privacy. There’s very little reasonable expectation of privacy for people who are out in the street. And so that’s why you can photograph them. They really can’t complain because they’re out there. Anybody can see them. On private property, that’s not the case. But then how closely can you get to them …?

“If you’re using equipment that enhances your ability … that can cross the line,” Solomon said. “Police can take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.”
What about the close-up photographs of a president’s hand-held notes, like the images of President Trump’s speech notes? Are they protected?

“I doubt that because he’s a president of the United States and … the notes he makes are such public interest that I have a hard time seeing where he would win a case like that. If it’s a private citizen and it wasn’t someone who was a newsmaker or involved in some kind of a public controversy and you just randomly focused in on their private scribblings … that might be a problem.”

Courtesy goes a long way
“You don’t have to be polite, but it always helps. The police officer has the power. You don’t want to be arrested. It serves nobody’s interest to be arrested. You need to be out there covering things. And so the best thing to do is to be polite.”

Speaker: Stephen D. Solomon, Founding Editor, First Amendment Watch; Marjorie Deane Professor of Journalism, New York University

Summary, transcript and resources: https://nationalpress.org/topic/know-...

This program is sponsored by Arnold Ventures.

This video was produced within the Evelyn Y. Davis studios. NPF is solely responsible for the content.