Heading back to Ferguson? Know your rights

A man who declined to be identified stands outside a boarded up business Thursday, Nov. 20, 2014, in Ferguson, Mo. (AP Photo/Jeff Roberson)
A man who declined to be identified stands outside a boarded up business Thursday, Nov. 20, 2014, in Ferguson, Mo. (AP Photo/Jeff Roberson)

This August in Ferguson, Missouri, there was a lot of confusion between police officers about rules and rights about the press, said Tony Rothert, legal director, ACLU of Missouri "and it became very arbitrary where people where told they could and couldn't be."

"The constitution does protect the right of a member of the media to stand on a public street or sidewalk, to talk to people and to photograph," he said. "I think those rights were violated frequently in the last set of protests and we'll have to be vigilant to assure that that does not occur again."

On Saturday, journalist Trey Yingst was arrested in Ferguson, Huffington Post's Ryan Reilly reported.

In a statement, the ACLU of Missouri said "Mr. Yingst was arrested for allegedly standing in the street and failing to disperse after being asked by law enforcement to do so. However, several eye-witness accounts and video recordings of the incident suggest that Mr. Yingst was standing on the sidewalk exercising his First Amendment right to record police at the time of his arrest and it is unclear what legal authority police officers would have had to order him to disperse."

Here are a number of things to be aware of if you're in Ferguson or heading back there to cover the grand jury ruling in the shooting death of teenager Michael Brown by Ferguson police officer Darren Wilson. I spoke with Rothert and National Press Photographers Association counsel Mickey Osterreicher earlier this month. (I also spoke with the two in August and they offered tips on what you should do if you were arrested while covering Ferguson.)

This time around, Osterreicher thinks police know they're under a lot of scrutiny. Still Rothert said, "at this point I would say there's still gonna be a lot of confusion."

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-- Keep recording

If you or another journalist gets into an incident with police, keep recording, Osterreicher said, so "we're not just hearing about them anecdotally and we can actually see them and hear them if they're happening."

The ACLU of Missouri filed a motion for a preliminary injunction to record police. From the introduction:

In this case, Plaintiff challenges Defendants’ policy or custom of interfering with individuals who are photographing or recording at public places but who are not obstructing or threatening the safety of others or physically interfering with law enforcement. The interference has taken many forms, including threatened arrest for standing in public places and recording, actually arresting journalists, prohibiting media members from standing at public places, ordering them not to record, shoving them, and firing teargas at them. In the United States, such interference is prohibited by the First Amendment, as Defendants acknowledged by entering into an agreement at the beginning of this case. Unfortunately, the policy and custom of interference continues, so Plaintiff must ask this Court for prospective relief.

On Nov. 21, the ACLU of Missouri got three court orders securing the right to record police.

Sam Kirkland created a series of tweets from Poynter's Jill Geisler in August and one of them seconds this advice.

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In August, Poynter's media law faculty Ellyn Angelotti Kamke wrote "During protests, police may balance journalists’ rights with public safety."

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.

-- You're OK to be in public places

"You certainly have a right to be present in a public place," Osterreicher said. "If the public's there, then you're entitled to be there."

I've quoted Osterreicher saying this before, but it's worth the repeat -- journalists don't have any greater rights than the public to be in public places, "but they certainly have no less right."

Angelotti Kamke wrote this in August:

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.

-- Press areas shouldn't be restrictive

Police set up a press area for convenience of the press, Osterreicher said, to do live shots and park their satellite trucks, for instance.

"That doesn't mean that it's the only place that they can cover the story from. There's a huge distinction between the police trying to accommodate the press and then turing that accommodation into a restriction."

-- You don't have to keep walking

That eventually was the rule in Ferguson this past August -- keep walking. But a judge ruled for a preliminary injunction against it.

Yamiche Alcindor wrote about the ruling in October for USA Today.

The judge cautioned, however, that police still can enforce Missouri's failure-to-disperse law and other laws to control crowds and protect people and property.

"This injunction prevents only the enforcement of an ad hoc rule developed for the Ferguson protests that directed police officers, if they felt like it, to order peaceful, law-abiding protesters to keep moving rather than standing still,'' she wrote.

"We're working to address, hopefully before there are protests again, the issue of where people can stand when they're photographing," Rothert said.

-- If there's an order to disperse ...

This one is tough, Osterreicher said "because it really depends on who's complying and normally accommodations are made for the press to be able to remain, at least in the area, to report on orders and possible arrests. But what we've seen is that the police are trying to use those orders to then arrest the press or detain them and stop them from recording and reporting on the other acts."

Ferguson is not unique in this, he said. In many places, police go after the press first "to shut down the eyes and ears."

-- Work in pairs

Work with another journalist, Osterreicher said. "Have people know that you're there. Look out for one another."

Rothert agreed. Many journalists he has spoken to are aware of their rights, possibly more than the general public. But he thinks it's important for journalists to keep an eye out for each other.

"When we have been able to complain about abuses of journalists, it's been very helpful that other journalists have witnessed it and many taped and photographed it."

Journalists have to look out for each other, he said.

"That's not the way it's supposed to be. That shouldn't have to be necessary, but it was last time and I think it's going to be important going forward."

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-- We get these rights as the press, but citizens get them, too

And defining who is "the press" and who isn't is tricky, now more than ever, Osterreicher said. Media covered protests about the Vietnam War, often with cameras. Police didn't respect journalists more then, "but it was easy to figure out who are the journalists and who are the protesters."

During the Occupy Movements, the NATO Summit in Chicago, protests at the Democratic and Republic National Conventions, everyone had cell phones with cameras. Osterreicher trained police in Chicago, Charlotte and Tampa that everyone has the right to photograph and record. But that can make it hard for police to tell protesters from journalists.

"Especially, again in my observations, when you've got young journalists and you've got young protesters and everybody dresses the same, it's difficult for police to figure out who's who."

After three months, a lot of the issues that came up in August between police and the press haven't been resolved, Rothert said.

"What's been consistent is the inconsistency."

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