The courts must protect journalists

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Video journalist and documentary filmmaker Mike Shum during recent protests in Minneapolis. (Katie G. Nelson )

We write this Op-Ed as representatives of two professions (law and journalism) that venerate objectivity and value dispassionate observation and analysis. We write this because journalism was once considered a safe profession within America’s borders, but that is becoming increasingly untrue.

We have worked all over the world, including China, the Democratic Republic of Congo and Cambodia, and we are concerned by the familiar attacks against truth and facts we see here in the U.S. One of us (Mike) was struck by rubber-bullet fire while covering the Black Lives Matter protest in the wake of George Floyd’s murder.

The free press has been under siege in this country since the election of President Donald Trump. Since Trump’s inauguration, the U.S. has become increasingly hostile to journalists. Traditional news outlets are disparaged, derided as “fake news” and ignored in favor of sources that offer “alternate facts.”

Even now, journalists are fighting multiple legal battles to maintain their freedom to report the facts on the ground.

Take, for example, the lawsuit that Index Newspapers (Portland Mercury) has filed to protect its reporters in Portland. According to its complaint (and multiple secondary sources), the journalists “were not engaging in unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents.”

In July, U.S. District Court Judge Michael Simon agreed that this was unjust. He ruled that federal law enforcement officers cannot threaten violence or arrest anyone whom they “know or reasonably should know” is a journalist or legal observer, unless officers have probable cause to believe that individual is guilty of a crime.

Moreover, Simon ruled that journalists would not be subject to law enforcement’s dispersal order, ensuring that reporters would have the freedom to stay and report on whether dispersal was carried out peacefully and correctly.

Furthermore, the judge ruled that any federal officer disobeying his order would not enjoy the privilege of “qualified immunity.” That is, while police officers are normally shielded from civil lawsuits, a police officer threatening to arrest or harm a journalist would no longer be so protected.

Judge Simon’s decision was correct. The freedoms of speech and of the press are enshrined in the very First Amendment of our Constitution. America’s founding generation understood that a press corps open to coercion or subject to strongman tactics would surely lead to our nation’s demise.

But the Appeals Court saw it differently. In August, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit issued a 2-1 decision temporarily setting aside Simon’s decision.

The 9th Circuit came to the wrong decision, both on the letter and on the spirit of the law. Indeed, back in 2012, it was the 9th Circuit, the very same federal court, that declared reporters are “guardians of the public interest” and should be protected accordingly.

The case is still ongoing. The 9th Circuit ruled earlier this month that the federal government could not continue to rely on its previous temporary decision. As of this writing, Judge Simon’s initial decision in favor of protecting the journalists stands once more. But it stands precariously, and the journalists’ protections remain uncertain.

Law enforcement must treat reporters with deference and respect. That is the only way our fledgling democratic experiment survives. American electoral democracy rests on the tacit assumption that voters are armed with the knowledge to make informed decisions at the ballot box. Voters deserve to know what their elected officials, from president to town sheriff, are doing with their votes and hard-earned tax dollars.

The 9th Circuit’s August decision was short — only two pages. It rested on the notion that identifying journalists and legal observers would “cause irreparable harm to law enforcement efforts and personnel.” It did not explain why that might be so. The October decision, though it clocked in at 70 pages, also did not settle the issue.

We are concerned about the “irreparable harm” that may befall our nation should our nation’s courts treat journalists as expendable. Our courts must grant journalists the protection they need to do their jobs and report the facts on the ground. The future of our nation’s democracy depends on it. 

David Benger: is a Research Fellow at Harvard Law School and a Senior Fellow at the MirYam Institute.
Mike Shum: is an Emmy-nominated video journalist and documentary filmmaker.