During protests, police may balance journalists' rights with public safety
Without being at the scene of the arrests it is difficult to say if anyone did anything illegal last night when two reporters were detained at a McDonald’s in Ferguson, Missouri. The reporters were covering the protests and riots that broke out after an 18-year-old black man named Michael Brown was fatally shot by police there.
The tension here lies with allowing the police to do what they need to do to protect public safety and conduct a complete investigation and balancing that with journalists' right to report.
The police can regulate the time, place and manner of speech to a certain degree as long as it is not a content-based regulation. Meaning, they can clear an area of everyone if they think they need to do that to keep the peace, but they can’t single out a journalist and tell him he cannot be there.
The First Amendment provides safeguards that allow people to gather and disseminate information about government officials. A question to consider in this instance is: Why did the police arrest the reporters? Were the police trying to control the scene or to stop the journalists from doing their jobs?
A journalist has the same rights as the general public to access public property. And, generally, it is legal to record video of people where they would reasonably expect to be seen. However, journalists are not granted special rights to disobey police orders, nor are they allowed to interfere with police work.
Journalists have potential recourse if they believe they are unlawfully arrested. If journalists can prove that they were specifically detained because they were covering news, not just because they were suspected of breaking the law, they can potentially bring a civil claim against a police officer for unlawfully interfering with news gathering.
When journalists are covering demonstrations or public events, they should at all times carry a press credential and government-issued identification (like a driver’s license or a passport) to make it visible that they are members of the media. Also, they should carry money or a credit card to post bond, if necessary.
If a journalist is arrested, he should let the officer know that he is a member of the media and let the supervising officer be notified that a reporter is being detained. The arrested journalist should ask to contact his or her organization's lawyer.
When reporting in a private property, like a McDonald’s, to minimize risk you should seek consent from the property owner. If you are asked to leave private property, you can explain why you believe you should be able to stay on the property. However, you can be charged with trespassing if you remain on the property and the owner or government officials determine that you do not have a right to be there.