Mediaboss Marketing

The killing of George Floyd and the ensuing civil unrest have placed journalists at the center of

large-scale protests and demonstrations across the United States, including in major metropolitan

centers throughout Texas. In the course of covering these protests, many journalists have found

themselves in harms way, and members of the press corps have been assaulted, detained, or

arrested in the line of duty. The press has a responsibility to cover these public events, and the

First Amendment protects journalists ability to cover public demonstrations, such as those going

on in response to the death of George Floyd. The following outlines First Amendment

protections as they relate to coverage of protests and demonstrations.

Does the Press Have a First Amendment Right to Cover Protests?

Yes. In general, journalists have a First Amendment right to cover protests and demonstrations.

Members of the press cannot be excluded from public spaces simply because they are journalists.

Similarly, law enforcement cannot prevent journalists from reporting, and law enforcement or

government officials cannot retaliate against journalists for doing their job.

At the same time, these First Amendment protections do not place journalists above the law.

Journalists are still generally subject to the same laws and restrictions as the public, including

PAGE 2

orders regulating the time, place, and manner of First Amendment activity. Furthermore,

members of the press typically do not enjoy special access to places or information that are not

accessible to the public, and the First Amendment does not allow journalists to trespass or

otherwise break the law, even if they are doing so in furtherance of newsgathering efforts or to

report on protests or demonstrations.

Can Journalists Record Law Enforcement Activity at Public Protests?

Taking photographs or video of people or events that are visible in public is permissible and

constitutionally protected. Journalists who are lawfully present in a public space have the right to

record anything in plain viewincluding police activity, so long as the press activity is not

interfering with legitimate law enforcement operations. By contrast, when an individual is on

private property, the owner of the property may restrict anyones ability to record or require

individuals to leave for any reason.

As stated above, First Amendment protections to engage in newsgathering activity do not entitle

journalists to break the law, such as laws against trespassing. Journalists should also be familiar

with Texas wiretapping statute, which prohibits surreptitious recording of private conversations

without consent. Under Texas Law, a person may only record audio of conversations if those

conversations are in a public place where there is no reasonable expectation of privacy, or if at

least one party to the conversation has consented to the recording. As a matter of best practices,

journalists should clearly identify themselves as members of the press and remain open and

transparent about their use of recording devices.

When Can Journalists Be Detained or Searched?

If a law enforcement officer has a reasonable suspicion that a person is involved in criminal

activity, that officer can temporarily detain him or her in what is known as a Terry stop, (also

known as a stop and frisk). During such a stop, a law enforcement officer may conduct a patdown to ensure that a detainee is not armed and dangerous. For a law enforcement officer to

arrest someone, the officer must have probable cause to believe that the person committed a

crime. This is a higher standard than the reasonable suspicion required for a temporary stopand-frisk.

The Fourth Amendment protects individuals from unreasonable searches or seizures of their

property. Furthermore, the Privacy Protection Act of 1980 prevents law enforcement officers

from searching and seizing a journalists work product, including notes, photographs, and video

footage, without a warrant. If a law enforcement officer demands to inspect such newsgathering

materials, journalists should clearly identify themselves as members of the press and explain that

they are covered by this law. Furthermore, in the absence of a warrant, journalists may withhold

consent for law enforcement to search their belongings or work product, including the contents

of recording devices and cellular telephones.

What Should Journalists Do if Confronted by Law Enforcement?

Journalists should exercise extreme caution covering protests and demonstrations. Members of

the press have reported incidents in which journalists have been targeted by law enforcement for

covering protests. Members of the press have been detained or arrested, shot with rubber bullets,

PAGE 3

and sprayed with tear gas or pepper spray in the course of their reporting in the field. Journalists

should remain alert and mindful that they may face hostility from both demonstrators and law

enforcement when covering these protests.

Journalists should be sure to carry a government-issued identification, as well as contact

information for attorneys or organizationsincluding the Texas Press Association or the

Reporters Committee for Freedom of the Pressthat can provide legal resources and guidance to

journalists. Journalists should clearly identify themselves as members of the press and

prominently display all press credentials. Members of the press should remain alert and

cognizant of potential threats, and should calmly and respectfully discuss their rights with law

enforcement if they feel that their First Amendment rights to engage in newsgathering activity

are being violated.

Furthermore, journalists in the field should stay apprised and mindful of any dispersal orders or

curfews that may impact their ability to be in public spaces. Many state and local curfews

contain exemptions for members of the media, but members of the press should stay aware of

any developments that may impact their ability to safely or legally be at the scene of a public

demonstration.

Texas journalists should contact the Texas Press Association at 512-477-6755 or the Reporters

Committee for Freedom of the Press at 800-336-4243 or rcfp@hotline.org.

Originally posted here:
First Amendment Protections for Journalists Covering Protests - The killing of George Floyd and the ensuing civil unrest have placed journalists at...