ANDREA SAHOURI. BING GUAN. GO NAKAMURA. MARK ABRAMSON. KITRA CAHANA. ARIANA DREHSLER. JARED GOYETTE. CRAIG LASSIG. MICHAEL SHUM. KATIE NELSON. TANNEN MAURY.
Who are these people?
All reporters or photojournalists targeted by the police for arrest and some even prosecuted. Law enforcement attacks on journalism have become so bad that reporters requested a retraining order in federal court to stop law enforcement from attacking, harassing and retaliating against reporters covering the Daunte Wright protests. Law enforcement has shot journalists with rubber bullets, pepper sprayed them, and arrested or threatened them with arrest. Police have gone so far as to order the press to abandon their reporting.
And this is not an unusual situation as shown below:
And this does not count the subpoenas by prosecutors for journalists to produce their reporting materials or testify in court. Freedom of the press—the right to report news or circulate opinion without censorship from the government—was considered “one of the great bulwarks of liberty,” by the Founding Fathers of the United States. “Our liberty depends on the freedom of the press, and that cannot be limited without being lost,” Thomas Jefferson wrote to a friend in 1786.
To understand why freedom of the press is so important, it is necessary to understand freedom of the press in a historical context.
An early defense of press freedom was made by the poet John Milton in his 1644 pamphlet Areopagitica, written in response to the British Parliament’s passage of a law requiring the government to approve all books prior to publication. “Truth and understanding,” Milton argued, “are not such wares as to be monopoliz’d and traded in by tickets and statutes, and standards.” On December 2, 1766, the Swedish parliament passed legislation that is now recognized as the world’s first law supporting the freedom of the press and freedom of information. Narrowly, the Freedom of the Press Act abolished the Swedish government’s role as a censor of printed matter, and it allowed for the official activities of the government to be made public. More broadly, the law codified the principle—which has since become a cornerstone of democracies throughout the world—that individual citizens of a state should be able to express and disseminate information without fear of reprisal.
William Blackstone was an English legal scholar whose ideas shaped America. The philosophy of the Declaration of Independence asserting the “self-evident” “unalienable Rights” of people granted by “the Laws of Nature and of Nature’s God” could have come, and probably did, from Blackstone’s description of the rights of Englishmen under the British Constitution. The indictment against the Crown, the bulk of the Declaration, recites many of the absolute rights of individuals covered by Blackstone including the prohibition of taxation without consent. Blackstone wrote, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” 4 W. BLACKSTONE ’ S COMMENTARIES ON THE LAWS OF ENGLAND 151–52 (T. Cooley, 2d rev. ed. 1872). See 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1874–86 (1833)
The principle that the public has a right to be informed came to America in 1733 when New York newspaper publisher John Peter Zenger, in a landmark jury trial, was acquitted of seditious libel on the grounds that the articles he printed, which were harshly critical of New York’s colonial governor, were nonetheless based on fact.
The framers of the U.S. Constitution enshrined the same principle in the document’s First Amendment: “Congress shall make no law…abridging the freedom of speech, or the press.” Naturally, there has been a discussion about what the Founding Father’s “original intent” was in writing these words. The answer is that nobody knows what the First Amendment originally meant. As leading First Amendment scholar (and former dean of Richmond Law) Rodney Smolla puts it, “One can keep going round and round on the original meaning of the First Amendment, but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” A quick look at the history reinforces Smolla’s point. Only a decade after the Constitution went into effect, Americans vehemently disagreed over whether Congress could pass the Sedition Act of 1798, which banned false and malicious criticisms of the federal government. If the founders couldn’t even agree among themselves about that type of law, then surely looking for the First Amendment’s “original meaning” is like searching for the Holy Grail.
However, what is clear is that The Virginia Declaration of Rights contained the first constitutional guarantee of freedom of the press. The 1776 Virginia Declaration of Rights stated, “The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Edmund Randolph, a member of the drafting committee, stated it was one of “the fruits of genuine democracy and historical experience. “‘ James Madison would borrow from that declaration when drafting the First Amendment. “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring). The essential role of a free press in our democracy is to “to serve the governed, not the governors. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Id. Not even a “President has ‘inherent power’ to halt the publication of news by resort to the courts.” Id. at 719.
The courts have reiterated the essential public service journalists play in reporting these events and enjoined police from targeting constitutionally protected activity. Id.; see also Abay v. City of Denver, 445 F. Supp. 3d 1286, 1292-93 (D. Colo. 2020) (“Here, it is clearly in the public interest to protect plaintiff’s right to demonstrate, the media’s ability to document that demonstration, and third parties’ ability to render aid to demonstrators without threat of excessive force by police.”); c.f. Black Lives Matter Seattle King County v. City of Seattle, 466 F. Supp. 3d 1150 (W.D. Wash 2020) (enjoining the use of excessive force against protesters); Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150 (D. Or. 2020) (same); Detroit Will Breathe v. City of Detroit, 484 F. Supp. 3d 511 (E.D. Mich. 2020) (same).
It is axiomatic that “the public interest favors protecting core First Amendment freedoms.” See Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999); see also Associated Press v. Otter, 682 F.3d 821, 626 (9th Cir. 2012)(“Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.”); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (granting an injunction under the Fourth Amendment and explaining “it is always in the public interest to prevent the violation of a party’s constitutional rights”).
Public interest in having events reported is greater than public interest in maintaining order and public safety. While law enforcement agencies have an interest in maintaining order and public safety, that interest is not served by using force against individuals who identify as journalists, or who are merely recording events and present no threat of harm to police or the public. Police have no significant interest in enforcing unconstitutional customs or policies. See Ahmad v. City of St. Louis, Missouri, No. 4:17 CV 2455 at 45 (E.D. Mo. Nov. 15, 2017) (injunction warranted in the absence of force or violent activity by protesters).
Freedom of press includes Plaintiffs a constitutional right to document protest activities, including law enforcement responses and behavior. See, e.g., ACLU of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The making of 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.”); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.” (internal quotation omitted)); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).