June 14, 2022

In September 2020, former President Donald Trump referred to an MSNBC reporter suffering a knee injury from a police projectile as a “beautiful sight.” The reporter had been injured by police while covering a Black Lives Matter protest earlier that year.

That statement, and the near-constant attacks on the press during his administration, played a key role in a dark, new chapter for press freedom in the United States.

“(That) administration serves as a horrible, yet impactful, example of the ways that pitting the population against the press and blaming reporters for unfavorable coverage can be a potent political tactic,” said Katherine Jacobsen, United States and Canada regional program director for the Committee to Protect Journalists.

Following the murder of George Floyd and the killing of Breonna Taylor at the hands of police, millions took to the streets across America and the world in the spring of 2020 to protest police brutality and a system of law enforcement that has historically and disproportionately targeted Black and brown people.

What followed was months of protests, clashes with riot police and mass arrests of largely peaceful protesters and demonstrators. This is not a new phenomenon. The country witnessed similar situations transpire in Ferguson, Missouri, following the police killing of Michael Brown, an unarmed 18-year-old Black man, in 2014.

What struck more urgently this time was the public and violent disregard for the practice of journalism by some police, including mass arrests and assaults on the rights of journalists covering these protests.

Ed Ou, a visual journalist with NBC News, had his scalp lacerated by a projectile fired at close range by police while he was covering a protest in Minneapolis.

Ou was wearing a clearly visible NBC press badge.

CBS San Francisco reporter Katie Nielsen was arrested by police while covering a Black Lives Matter protest in Oakland, California, on June 1, 2020.

Neilsen was wearing a clearly visible CBS press badge.

While journalists have been arrested in the past, including during the Ferguson protests, these instances are increasing and raising larger questions about this shift in treatment and the concerns it bears for the free press. In 2020, journalists across the United States faced record numbers of physical attacks, arrests and cases of equipment damage, as well as many other press freedom violations, according to the Reporters Committee for Freedom of the Press’ annual report analyzing data from the U.S. Press Freedom Tracker.

The Press Freedom Tracker was launched in 2017 by the RCFP and more than two dozen other press freedom organizations, including the Freedom of the Press Foundation — a national nonprofit that documents and catalogs press freedom violations across the U.S.

Trevor Timm, executive director of the Freedom of the Press Foundation, said the U.S. saw a shocking increase in the number of journalists arrested between 2019 and 2020.

“There were about 150 press freedom violations in 2019 in the U.S., which we thought was very high,” Timm said. “But then in 2020, it increased by at least fivefold.”

Timm says it’s no surprise that the number of press freedom violations, assaults and arrests of journalists increased with the rise of protests across the nation.

“We have seen police act in this abusive and unconstitutional manner in the past,” Timm said, citing the arrests of journalists covering the Occupy Wall Street movement in New York in the early 2010s, the Black Lives Matter protests in Ferguson in 2014, and the Standing Rock protests in 2016.

“If there was never really any accountability in any of these past instances, when there is now this nationwide movement, are cops going to be worried they’re going to get in trouble if they violate journalists’ rights? The answer is no,” Timm said.

The report identified that journalists faced 438 physical attacks in 2020 in the U.S. alone, more than 90% of which occurred as they reported on the nationwide racial justice protests. Police officers were responsible for 80% of these attacks, affecting 324 journalists. Nearly 200 of them appeared to be deliberately targeted by police, according to the Reporters Committee’s 2020 Press Freedom report.

Police officers assaulted reporters with tear gas, batons, pepper balls and rubber-coated bullets.

Even as municipalities across the country imposed curfews in an effort to suppress protests, many of these curfews contained exemptions for journalists “either explicitly or by permitting essential workers,” according to a report from the Committee to Protect Journalists.

Over the years — according to guidelines compiled for the Committee to Protect Journalists by TrustLaw, the Thomson Reuters Foundation’s global pro bono legal program — courts have commonly recognized that the First Amendment protects a reporter’s right to record law enforcement in public, including during a protest. Furthermore, there is a similar consensus, according to the same legal analysis for CPJ, that the Fourth Amendment protects journalists against having to hand over notes or reporting materials to police, and against illegal arrest. An arrest can be considered seizure of a person, which also implicates the Fourth Amendment. Police must have “probable cause” to make an arrest, and in the case of journalists, mere proximity to criminal activity is not enough to justify an arrest while covering a protest even if protesters become violent.

Police were not shown to have honored the exemptions for journalists in these curfews, nor the commonly understood legal protections, during the monthslong Black Lives Matter protests of 2020.

In Oregon, attacks and arrests of journalists continued even after a federal judge barred law enforcement from targeting journalists engaged in lawful newsgathering.

‘I believe we’re all about to be arrested’

A federal officer guards the Mark O. Hatfield U.S. Courthouse as protesters gather Friday, July 24, 2020, in Portland, Ore. (AP Photo/Noah Berger)

Summer 2020 saw numerous examples of clearly identified and law-abiding journalists arrested for covering protests.

Omar Jimenez, a CNN correspondent, and his crew were arrested while giving a live television report in Minneapolis while covering protests over Floyd’s murder.

Carolyn Cole, a veteran photojournalist with the Los Angeles Times, and her team were cornered by police and pepper-sprayed at close range while documenting a protest, also in Minneapolis.

Cole suffered damage to her right cornea and chemical burns to her eye and skin. She was forced to halt coverage.

Last May, Cole and her colleague, Molly Hennessy-Fiske, filed a lawsuit against Minnesota State Patrol officers, saying officers violated their First Amendment rights. The lawsuit sought compensatory and punitive damages. In an interview after filing the lawsuit, both Cole and Hennessy-Fisk reflected on some of the more dangerous areas of the world their careers have taken them — into war zones in Iraq and Afghanistan, for example — and noted they had never experienced such specific targeting as they did by Minneapolis police in May 2020.

Cole and Hennessy-Fisk’s lawsuit was later included in a class-action suit filed by the American Civil Liberties Union of Minnesota, which represented a larger group of journalists who were attacked and arrested during that time.

Ou, of NBC News, was also part of the suit.

This February, a settlement was reached in the case, holding the Minnesota State Patrol accountable for these attacks.

In addition to more than $800,000 in financial compensation for the journalists involved, Minnesota State Police and outside law enforcement working alongside them — under court order — will now be explicitly prohibited from:

  • Arresting, threatening to arrest, and/or using physical force or chemical agents against journalists;
  • Ordering journalists to stop photographing, recording or observing a protest;
  • Making journalists disperse;
  • And seizing or intentionally damaging equipment such as photo, audio or video gear.

Those involved in the case say they hope this will serve as an example of what kind of action other states should take against police who participated in similar First Amendment violations.

A dark new chapter

Black Lives Matter protesters rally outside Iowa Gov. Kim Reynolds’ office, Monday, June 29, 2020, in Des Moines, Iowa. (AP Photo/Charlie Neibergall)

On May 31, 2020, Andrea Sahouri, a reporter with The Des Moines Register, was arrested in Des Moines, Iowa, while covering Black Lives Matter protests in the area.

This was the third night Sahouri had covered the protests in Des Moines that began shortly after news broke of Floyd’s murder.

Sahouri described the protest on May 31 as made up largely of middle school and high school students. It escalated when protesters blocked the street at a busy intersection near a local shopping center and quickly turned violent after riot police arrived and began forcing dispersal.

“Police came out after that in a line of riot gear,” Sahouri recalls. “There was pepper spray, tear gas, batons and later in the night full-on Bearcats (armored S.W.A.T. vehicles).”

Riot police began pushing the crowd into a parking lot near the shopping center, “really with no means of leaving,” in order to make mass arrests, Sahouri said.

During a lull, Sahouri walked across the parking lot to interview protesters.

As Sahouri and a fellow journalist approached the group of protesters, police arrived in an armored vehicle, deploying pepper spray and rubber-coated bullets.

“Obviously we’re going to run from that, so we ran,” Sahouri said. “I couldn’t really see much of what was behind me so I turned around.”

That’s when Sahouri saw a police officer charging at her.

“I immediately put my hands up and said ‘I’m press, I’m press, I’m with The Des Moines Register,’” she said. “He grabbed me, pepper-sprayed me right in the face and said ‘That’s not what I asked,’ and proceeded to arrest me.”

Her colleague was allowed to go, but Sahouri was charged with “failure to disperse” and “interfering with official acts,” both of which are misdemeanors. She was the only journalist of color on the scene.

As pepper spray soaked her clothes, Sahouri went live on her Twitter account in the back of the police car.

“I just knew what was happening wasn’t right. I did nothing wrong and it’s a big deal arresting a journalist,” she said.

This livestream was how Sahouri’s editor learned of her arrest.

What many don’t realize is that pepper spray spreads like poison ivy, Sahouri said. By the time she arrived at the Des Moines jail, her entire body felt like it was burning.

“I actually had to strip and shower in front of female officers because I was in so much pain,” Sahouri noted.

She was held in police custody, including time at the Polk County jail for nearly four hours before being released.

While many journalists were arrested and later released, the Polk County Attorney brought Sahouri to court for her charges in March 2021 — a move that drew outrage from many in newsrooms across the country.

The ACLU of Iowa called the trial an “outlandish prosecution.”

The Committee to Protect Journalists’ Jacobsen initially called the arrest and trial “incredibly concerning.”

“That’s an understatement actually,” Jacobsen said, adjusting her language. “It was alarming that a journalist would actually be brought to trial simply for being in a location and covering one of the top stories in the country at the time. I think it speaks to a larger issue about local authorities trying to perhaps make statements by deciding to go after reporters.”

A jury acquitted Sahouri of both charges after only two hours of deliberation. The Des Moines police officer who arrested Sahouri did not activate his body camera until 15 minutes after the arrest took place, which drew the validity of the arrest itself into question during the trial.

Even after her unanimous acquittal, members of the prosecutorial team, including Polk County Attorney John Sarcone, defended their failed attempt to charge Sahouri.

“After I was found not guilty, he (Sarcone) doubled down and told national media that I was there to protest,” Sahouri said.

Sahouri continued to cover protests and civil unrest for The Des Moines Register after her release and acquittal but has since requested her newsroom take her off the breaking news beat, which had her interacting with police on a near-daily basis, noting it was the best choice for her mental health. Sahouri now covers criminal justice for the Detroit Free Press.

A new era of risk

Associated Press videojournalist Robert Bumsted reminds a police officer that the press are considered “essential workers” and are allowed to be on the streets despite a curfew, Tuesday, June 2, 2020, in New York. New York City police officers surrounded, shoved and yelled expletives at two Associated Press journalists covering protests in the latest aggression against members of the media during a week of unrest around the country. (AP Photo/Wong Maye-E)

Stephen Solomon teaches First Amendment law and said law enforcement departments need a refresher course on what the First Amendment entails. He said they need to understand what freedom of the press means and what police can and can’t do as far as telling reporters what to do and where they can be.

“There may be some situations of animosity, you may have a police officer who just doesn’t like the media or maybe is trying to hide something,” Solomon, who is the founding editor of First Amendment Watch and Marjorie Deane Professor at NYU’s Arthur L. Carter Journalism Institute, said. “But I think there is also a lack of understanding of what the law requires under the First Amendment.”

Police must understand the public benefit and crucial role of journalism, Solomon said.

“Part of that is making it clear once again, to law enforcement, what the purpose of the press is,” Solomon said.

“That’s the reason why you have a press pass. That’s the reason why you should be allowed to stay while they’re clearing the street. That’s the reason why you should be allowed to go past the police barricade to cover what’s going on up close. That’s the function and if that meaning has been eroded over the years or is in danger, it needs to be renewed.”

For Jacobsen, the issue has been getting worse in recent years and reaches far deeper than simply a lack of education.

“There’s no better way to control coverage than to make sure that it’s not possible to cover something safely in the first place,” she said.

The disparity in police action against protesters is visible when examining movements like Black Lives Matter compared to recent anti-vaccination protests, Jacobsen notes.

“I think it says a lot about topics of coverage that perhaps cause greater concern for police,” she said. “When police go out and — as we saw during the Black Lives Matter protests in 2020 — specifically target journalists who are doing their jobs and trying to cover matters of public interest, I think it points to problems that perhaps they don’t want the media to cover.”

This poses a risk to the free press and the public service of informing the masses that journalists seek to fulfill, Jacobsen said.

“When you see your colleagues being poorly treated by law enforcement — when in theory they’re there to protect people — it makes you think twice about how you’re going to cover something and whether it’s worth the risk,” she added.

Jacobsen said journalists of color have long had to pay attention to concerns about risks and awareness that the rest of the news media are  now also facing.

In the field of journalism, foreign reporters and war correspondents often undergo Hostile Environment and Emergency First Aid Training (HEFAT), meant to prepare journalists for the trauma and risk that comes with operating in war zones.

Now, Jacobsen said, she is encouraging domestic journalists to undergo the same training.

“There’s a new understanding that home also carries with it these risks and that journalists should be prepared,” she said.

This story was updated to note that Andrea Sahouri has taken a job at the Detroit Free Press.

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Erin McGroarty is pursuing a master's degree in journalism at University of Wisconsin Madison, specializing in reporting on prisons, policing, and mass incarceration in America.…
Erin McGroarty

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